Asok Pande vs Supreme Court of India Thr. Its Registrar and Ors.

Art.32 – Initiation of contempt proceedings against the petitioner, whereby he was restrained from entering the High Court – Challenge to, in a writ petition u/Art. 32 – Held: Legality of a judicial order cannot be questioned in an original proceeding u/Art. 32 – If the petitioner was aggrieved by a judicial order of the High Court, remedies were available to him u/Art. 136 – Manner in which the petitioner sought to cast aspersions on the bench of the High Court, assigned with the hearing of the contempt proceedings against petitioner, is unwarranted – Moreover, reckless allegations levelled against judges of the High Court in a proceeding where correctness of the orders passed by the High Court not in issue and necessary parties to that proceeding not before the court. Contempt proceedings were initiated against the petitionerlawyer, by the Allahabad High Court for making allegations against several High Court Judges. An order was passed restraining his entry into the premises of the High Court. Aggrieved the petitioner, sought issuance of a writ of mandamus to the first respondent-Supreme Court of India to evolve the set procedure for constituting the benches and allotment of jurisdiction to different benches in Supreme Court; and also sought issuance of writ of mandamus to the second respondent-Allahabad High Court to evolve set rules with respect to formation of benches and vesting of jurisdiction to them on the pattern of rules so framed by the Supreme Court.

Dismissing the petition, the Court

HELD: 1.1 Disapproval is expressed of the manner in which the petitioner has sought to cast aspersions on the bench of the Allahabad High Court which was assigned with the hearing of the contempt proceedings against the petitioner. What the petitioner has averred is not based or founded upon any judicial order. The aspersions which he has cast on the judges of the High Court are unwarranted. Significantly, the correctness of an order passed by the High Court in the contempt proceedings initiated against the petitioner is not in question in the present proceedings. If the petitioner was aggrieved by a judicial order of the High Court, remedies were available to him under Article 136. As a member of the Bar, the petitioner should know better than to question the conduct of a judicial proceeding before the High Court in a writ petition under Article 32 of the Constitution. This is yet another instance of reckless allegations being levelled against judges of the High Court in a proceeding where the correctness of the orders passed by the High Court is not in issue; necessary parties to that proceeding are not before the court; and though the legality of a judicial order cannot be questioned in an original proceeding under Article 32. [Para 4] [343-H; 344-A-C]

1.2 In view of this binding elucidation of the authority of the Chief Justice of India in *Campaign for Judicial Accountability and Reforms v Union of India, the relief which the petitioner seeks is manifestly misconceived. For one thing, it is a well settled principle that no mandamus can issue to direct a body or authority which is vested with a rule making power to make rules or to make them in a particular manner. The Supreme Court has been authorised under Article 145 to frame rules of procedure. A mandamus of the nature sought cannot be issued. Similarly, the petitioner is not entitled to seek a direction that Benches of this Court should be constituted in a particular manner or, as he seeks, that there should be separate divisions of this Court. The former lies exclusively in the domain of the prerogative powers of the Chief Justice. [Para 11] [350-C-E]

1.3 The relief sought is contrary to legal and constitutional principle, there is a fundamental fallacy in the approach of the petitioner, which must be set at rest. The petitioner seeks the establishment of a binding precept under which a three judge Bench in the Court of the Chief Justice must consist of the Chief Justice and his two senior-most colleagues alone while the Constitution Bench should consist of five senior-most judges (or, as he suggests, three ‘senior-most’ and two ‘junior-most’ judges). There is no constitutional foundation on the basis of which such a suggestion can be accepted. This would intrude into the exclusive duty and authority of the Chief Justice to constitute benches and to allocate cases to them. Moreover, the petitioner seems to harbour a misconception that certain categories of cases or certain courts must consist only of the senior-most in terms of appointment. Every Judge appointed to this Court under Article

124 of the Constitution is invested with the equal duty of adjudicating cases which come to the Court and are assigned by the Chief Justice. Seniority in terms of appointment has no bearing on which cases a Judge should hear. It is a settled position that a judgment delivered by a Judge speaks for the court (except in the case of a concurring or dissenting opinion). The Constitution makes a stipulation in Article 124(3) for the appointment of Judges of the Supreme Court from the High Courts, from the Bar and from amongst distinguished jurists. Appointment to the Supreme Court is conditioned upon the fulfilment of the qualifications prescribed for the holding of that office under Article 124(3). Once appointed, every Judge of the Court is entitled to and in fact, duty bound, to hear such cases as are assigned by the Chief Justice. Judges drawn from the High Courts are appointed to this Court after long years of service. Members of the Bar who are elevated to this Court similarly are possessed of wide and diverse experience gathered during the course of the years of practise at the Bar. To suggest that any Judge would be more capable of deciding particular cases or that certain categories of cases should be assigned only to the senior-most among the Judges of the Supreme Court has no foundation in principle or precedent. To hold otherwise would be to cast a reflection on the competence and ability of other judges to deal with all cases assigned by the Chief Justice notwithstanding the fact that they have fulfilled the qualifications mandated by the Constitution for appointment to the office. [Para 12] [350-F-H; 351-A-E]

1.4 The submissions in regard to the constitution of benches in the High Courts are, equally lacking in merit. The insinuations sought to be made against judges drawn from the cadre of the district judiciary are disapproved. The Constitution has made specific provisions in Article 217(2) for the appointment of judges to the High Court. Judges of the High Court drawn from the Bar or from those who have held judicial office for at least ten years discharge the same functions as judges of the court upon their appointment under Article 217. To suggest that there is a distinction between the two is contrary to constitutional tenets. [Para 13] [351-E-G]

1.5 In his capacity as a Judge, the Chief Justice is primus inter pares: the first among equals. In the discharge of his other functions, the Chief Justice of India occupies a position which is sui generis. Article 124(1) postulates that the Supreme Court of India shall consist of a Chief Justice of India and other Judges. Article 146 reaffirms the position of the Chief Justice of India as the head of the institution. From an institutional perspective the Chief Justice is placed at the helm of the Supreme Court. In the allocation of cases and the constitution of benches the Chief Justice has an exclusive prerogative. As a repository of constitutional trust, the Chief Justice is an institution in himself. The authority which is conferred upon the Chief Justice, it must be remembered, is vested in a high constitutional functionary. The authority is entrusted to the Chief Justice because such an entrustment of functions is necessary for the efficient transaction of the administrative and judicial work of the Court. The ultimate purpose behind the entrustment of authority to the Chief Justice is to ensure that the Supreme Court is able to fulfil and discharge the constitutional obligations which govern and provide the rationale for its existence. The entrustment of functions to the Chief Justice as the head of the institution is with the purpose of securing the position of the Supreme Court as an independent safeguard for the preservation of personal liberty. There cannot be a presumption of mistrust. The oath of office demands nothing less. [Para 15] [353-A-E]

1.6 Some of the averments made by the petitioner are scandalous. However, it is appropriate to allow the matter to rest with a caution that the petitioner must be more responsible for the manner in which he seeks to draft pleadings in future filings. [Para 16] [354-A]

State of Rajasthan v Prakash Chand (1998) 1 SCC 1; *Campaign for Judicial Accountability and Reforms v Union of India (2018) 1 SCC 196 – referred to.