Madras High Court
Prisoners Rights Forum vs High Court Of Judicature At Madras on 11 August, 2014
Equivalent citations: AIR 2014 MADRAS 246, (2014) 2 MADLW(CRI) 703, (2014) 5 MAD LW 11, (2014) 6 MAD LJ 129
Bench: V. Dhanapalan, G.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT M ADRAS DATED: 11-08-2014 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN AND THE HONOURABLE MR. JUSTICE G.CHOCKALINGAM W.P.No.14893 OF 2014 Prisoners Rights Forum represented by its Director P.Pugalenthi, No.5, 4th Floor, Sunkurama Street, Chennai 600 001. ... Petitioner vs. High Court of Judicature at Madras, represented by the Registrar General High Court of Judicature at Madras, Chennai 600 104. ... Respondent Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of mandamus directing the respondent to constitute a Special Bench for deciding the Habeas Corpus Petitions challenging the preventive detention under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1982 (Act 14 of 1982). For Petitioner : Mr.M.Radhakrishnan For Respondent : Mr.P.K.Rajagopal O R D E R
V.DHANAPALAN,J.
This Writ Petition is a Public Interest Litigation praying for a direction to the respondent to constitute a Special Bench for deciding the Habeas Corpus Petitions challenging the preventive detention under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1982 (Act 14 of 1982).
2. The petitioner is the Director of Prisoners Rights Forum, Chennai, which is a registered public Trust vide Registration No.4319/2008. The objects of the Trust are to create law awareness among the prisoners and to help them enforce their human rights, constitutional rights and legal rights.
3. A Division Bench of this Court, on 05.06.2014 heard W.P.No.9401 of 2014, a Public Interest Litigation filed by the Prisoners' Right Forum for issuance of a writ of mandamus directing that a judicial inquiry be instituted into the attack of about 500 prisoners inside Central Prison II, Puzhal, Chennai occurred on 24th March 2014 and further directing initiation of appropriate departmental action against all those prison officials, who were responsible for the said attack on the prisoners, and reserved orders. During the course of hearing of the above Writ Petition, it was made clear to this Court that the attack on about 500 prisoners inside the Central Prison II, Puzhal, Chennai, occurred at about 3.30 p.m. on 24th March 2014 and a sequel to a hunger protest staged by those prisoners those who were detained under Act 14, demanding early disposal of their Habeas Corpus Petitions pending before this Court.
4. According to the petitioner, earlier, there were 1360 prisoners detained under the Act and confined in Central Prison II, Puzhal, Chennai as on 24.03.2014. Presently, there would be more than 1600 prisoners detained under the Act and confined in the said prison alone. Almost all the prisoners detained under the Act have come before this Court challenging their preventive detention by way of HCPs. Pendency of Habeas Corpus Petitions increases day by day and this Court finds it difficult to dispose of all the HCPs relating to preventive detention of hundreds of people in time. Constitution of a special Bench for disposing of such Habeas Corpus Petitions is a must considering the fact that a large number of prisoners have already completed more than 8 months out of 12 months of the total period of detention and that the Regular Bench which is burdened with the hearing of HCPs (for admissions) and non-statutory custody cases and Criminal Appeals (Admission and Final Hearing) apart from HCPs (Act 14 of 1982) would not be in a position to dispose of the said HCPs before the completion of the total period of 12 months by the concerned prisoners.
5. A representation dated 04.04.2014 has been made by the petitioner to the respondent herein, who is the Registrar General of this Court, requesting constitution of a Special Bench for hearing and disposing of the HCPs concerning the Act. Since the respondent-High Court has so far not constituted a Special Bench for the purpose of deciding the said HCPs in the interest of justice, the petitioner is before this Court with a PIL.
6. The respondent Registrar General, High Court, Madras, has filed a counter affidavit to the following effect:
6.1. The content in the affidavit of the writ petitioner in respect of the number of prisoners detained under Act 14 of 1982 is a matter of prison record of which this office is not fully aware. A number of Habeas Corpus Petitions challenging preventive detention under the said Act have come to be filed before this Court. But the statement that this Hon'ble Court finds it difficult to dispose of the Habeas Corpus Petitions and that constitution of a Special Bench to dispose of such Habeas Corpus Petitions is a must is not a correct statement.
6.2. The petitioner made a representation dated 04.04.2014 to the Hon'ble Acting Chief Justice of this Hon'ble Court, suggesting that it would be in the interest of justice that a Special Bench be constituted for early disposal of Habeas Corpus Petitions under Act 14 of 1982. The petitioner has filed the present writ petition on the basis that the prisoners detained under the Act are entitled to enforce their fundamental right to speedy justice under Article 21 of the Constitution of India and that the failure of the High Court to constitute a Special Bench for speedy deciding of all the Habeas Corpus Petitions arising out of the Act would be violative of Articles 14 and 21 of the Constitution of India. The writ petition for issuance of Writ of Mandamus to the High Court has been filed by way of public interest litigation by the petitioner trust and according to him, he has filed it representing the interest of prisoners.
6.3. The writ petition is not maintainable and the prayer cannot be granted for a number of reasons. The right under Article 21 of the Constitution of India to have speedy justice is no doubt available to the prisoners. But that right cannot be enforced as against the Higher Judiciary in view of the constitutional limitations. The present writ petition seeking a Mandamus to constitute a Special Bench to hear Habeas Corpus Petitions has been filed against the High Court of Judicature at Madras represented by the Registrar General who has no power to constitute Benches. It is the exclusive prerogative of the Hon'ble Chief Justice or the Hon'ble Acting Chief Justice, as the case may be. In fact, the representation of the petitioner constituting the demand for constitution of Special Bench was made and addressed to the Hon'ble Acting Chief Justice. Therefore, though the writ petition is filed supposedly against this Hon'ble Court represented by the Registrar General, in essence, it is a writ petition to issue a Writ of Mandamus to the Hon'ble Acting Chief Justice to constitute a Special Bench as demanded by the petitioner.
7. According to the respondent, the prayer sought by the petitioner cannot be maintainable against the higher judiciary for the following reasons:
(a) By a plethora of decisions, it has been clearly laid down that constitution of Benches is the exclusive prerogative of the Hon'ble Chief Justice or the Acting Chief Justice, as the case may be. This power is expressly saved under Article 225 of the Constitution of India. Order 1 of the Appellate Side Rules of this Hon'ble Court also expressly provides so. Such prerogative would necessarily mean an exclusive right, power privilege or immunity, acquired by virtue of office. Hence the term prerogative necessarily implies a high degree of discretion having been vested in the authority enjoying the prerogative. Hence, such high discretion excludes the existence of any duty. It is settled law that in the absence of legal duty, no Mandamus can issue. It is also settled law that in the case of discretion, Mandamus cannot issue directing the discretion to be exercised in a particular way. On this ground alone, the present writ petition is bound to fail.
(b) Fundamental Rights under Part III of the Constitution of India are enforceable against the State. ''The State'' is defined in Article 12 of the Constitution of India to mean the Government and Parliament of India, the Government and Legislature of the states, all local and other authorities within the territory of India or under the control of the Government of India. That the Judges, particularly the Judges of Higher Judiciary in India are Constitutional Functionaries and not government servants or government officials, has been time and again laid down by a number of decisions of the Apex Court. They are not 'persons' or 'authorities' or 'government' against whom writs can issue under Article 226 of the Constitution of India. Therefore, an action to enforce Fundamental Rights under Article 14 and 21 cannot be sustained as against the Judiciary.
(c) Even on facts, there were about 1,632 Habeas Corpus Petitions pending before this Court as on 31.05.2014. Out of such petitions, 1579 petitions arose under Act 14 of 1982. Even in the normal course of hearing, the Hon'ble Division Bench disposes of the Habeas Corpus Petitions commensurate to the cases filed everyday and thereby, the pendency has been reduced drastically. This was achieved in the absence of any Special Bench for that purpose. Therefore, practically there is no necessity for constituting a Special Bench to deal with Habeas Corpus Petitions. On this score also, the prayer of the writ petitioner is not grantable.
8. Heard Mr.M.Radhakrishnan, learned counsel for the petitioner and Mr.P.K.Rajagopal, learned counsel appearing for the respondent-Registrar General, High Court.
9. The main thrust of the arguments of the learned counsel for the petitioner is that the constitution of a Special Bench for disposing of the Habeas Corpus Petitions is a must considering the fact that a large number of prisoners have already completed more than eight months out of twelve months of the total period of detention and that the Regular Bench is overburdened with the hearing of HCPs, both on the admission of statutory and non-statutory cases and Criminal Appeals (admission and final-hearing) apart from Act 14 detention cases. He would further contend that in this regard, they have represented to the Registrar General of this Court for constitution of a Special Bench and in the larger public interest, this Public Interest Litigation is filed for redressal of the public grievance.
10. In support of his case, learned counsel for the petitioner has relied on the following judgments:
(i) 1991 Supp (2) SCC 421 (H.C.Puttaswamy and others vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and others) "7. In 1983, seven persons who were also the applicants in response to the advertisement dated May 29, 1978 moved the High Court by means of writ petitions under Article 226 of the Constitution challenging the validity of all the aforesaid appointments. They claimed that they had better merit determined on the basis of marks in the qualifying examination prescribed for recruitment to the cadre of Second Division Clerks than those who were appointed. The appointments made by the Chief Justice from time to time without considering their case was impugned as arbitrary and in derogation of the rules of recruitment.
8. It is not disputed that the selection and appointment to the cadre of Second Division Clerks in all the departments of the State Government are regulated by Rules called the Karnataka Civil Services (Ministerial Posts) Recruitment Rules, 1966. The power to make selection under the Rules is vested in the State Public Service Commission. The selection is required to be made by written test followed by interview. On the basis of the merit determined by the written and interview tests, the Public Service Commission shall prepare a list of selected candidates. Before the commencement of the process of selection, the Heads of Departments are required to intimate the Public Service Commission the number of vacancies that are available for recruitment in their respective departments. The Public Service Commission would allot the corresponding number of selected candidates to each of the departments. The allotment is generally made with due regard to the option indicated by the candidates in their applications and also on the basis of their rankings in the select list. The said Rules are made applicable to the judicial department also by the statutory rules called the Karnataka Subordinate Courts (Ministerial and other Posts) Recruitment Rules, 1977. It provides that 90 per cent of the posts of Second Division Clerks on the establishment of the subordinate courts should be filled up by direct recruitment in accordance with the Karnataka State Civil Services (Recruitment to Ministerial Posts) Rules, 1966. According to the provisions of the Karnataka Civil Services (Classification, Control and Appeal) Rules, every District Judge is the appointing authority and consequently every district constitutes a recruitment unit. The District Judge being the unit head, like the head of any other department must send a requisition to the Public Service Commission intimating the number of vacancies available in his establishment for appointment. The Public Service Commission shall send a list of selected candidates to the District Judge as per his requisition. It is only after the Public Service Commission forwards the list of selected candidates the District Judge could make appointments of persons out of that list. No other person could be appointed in the clerical cadre of the subordinate courts except perhaps by promotion.
9. This is the undisputed procedure for recruitment prescribed by the Rules. The then Chief Justice, however, disregarded the authority of the Public Service Commission to make selection and by-passed the power of the District Judge to make appointment. He took upon himself the power of both the authorities of making selection as well as appointment in the establishments of the subordinate courts. Out of a large number of candidates who have applied in response to the Notification dated May 29, 1978 he called some candidates for interview at frequent intervals and appointed them in the High Court. At the beginning except on one or two occasions the number of candidates called for interview seem to be more than the candidates selected, but later on, only a few candidates were called for interview and they were all appointed on the same day. Most of them were immediately transferred to subordinate courts. In some cases, it is said that in the forenoon the candidates were appointed and taken on duty in the High Court; in the afternoon they were transferred and placed at the disposal of a District Judge for taking them on duty. In most of the cases the candidates seem to have reported before the concerned District Judge on the very next day. This cycle of appointment and transfer went on during the years 1980 to 1982 as against the advertisement of the year 1978. The total number of persons thus appointed came to ten times the number of posts advertised. They could not be retained in the High Court since the High Court apparently did not have so many vacancies. Their appointment in substance and effect was intended for the subordinate courts and accordingly most of them were transferred to subordinate courts circumventing the statutory provisions for such recruitment.
10. While the administration of the courts has perhaps never been without its critics, the method of recruitment followed by the Chief Justice appears to be without parallel. The learned Judges of the High Court have in a considered judgment allowed the writ petitions and quashed all those appointments. They have expressed the view that the appointments made by the Chief Justice were very serious violation of statutory law and constitutional protection of equality of opportunity guaranteed to the candidates under Articles 14 and 16(1). From the foregoing narration of events and by the rules of recruitment, it seems to us that there cannot be two opinions on the conclusion reached by learned Judges. The methodology adopted by the Chief Justice was manifestly wrong and it was doubtless deviation from the course of law which the High Court has to protect and preserve.
11. The Judiciary is the custodian of constitutional principles which are essential to the maintenance of rule of law. It is the vehicle for the protection of a set of values which are integral part of our social and political philosophy. Judges are the most visible actors in the administration of justice. Their case decisions are the most publicly visible outcome. But the administration of justice is just not deciding disputed cases. It involves great deal more than that. Any realistic analysis of the administration of justice in the courts must also take account of the totality of the Judges behaviour and their administrative roles. They may appear to be only minor aspects of the administration of justice, but collectively they are not trivial. They constitute in our opinion, a substantial part of the mosaic which represents the ordinary mans perception of what the courts are and how the judges go about their work. The Chief Justice is the prime force in the High Court. Article 229 of the Constitution provides that appointment of officers and servants of the High Court shall be made by the Chief Justice or such other Judge or officer of the court as may be directed by the Chief Justice. The object of this article was to secure the independence of the High Court which cannot be regarded as fully secured unless the authority to appoint supporting staff with complete control over them is vested in the Chief Justice. There can be no disagreement on this matter. There is imperative need for total and absolute administrative independence of the High Court. But the Chief Justice or any other Administrative Judge is not an absolute ruler. Nor he is a free wheeler. He must operate in the clean world of law, not in the neighbourhood of sordid atmosphere. He has a duty to ensure that in carrying out the administrative functions, he is actuated by same principles and values as those of the court he is serving. He cannot depart from and indeed must remain committed to the constitutional ethos and traditions of his calling. We need hardly say that those who are expected to oversee the conduct of others, must necessarily maintain a higher standards of ethical and intellectual rectitude. The public expectations do not seem to be less exacting.
12. Having reached the conclusion about the invalidity of the impugned appointments made by the Chief Justice, we cannot, however, refuse to recognise the consequence that involves on uprooting the appellants. Mr Gopal Subramanium, counsel for the appellants while highlighting the human problems involved in the case pleaded for sympathetic approach and made an impassioned appeal for allowing the appellants to continue in their respective posts. He has also referred to us several decisions of this Court where equitable directions were issued in the interests of justice even though the selection and appointments of candidates were held to be illegal and unsupportable.
(ii) 1998 (1) SCC 1 (State of Rajasthan vs. Prakash Chand and others) 34. Even otherwise, it is a fundamental principle of our jurisprudence and it is in public interest also that no action can lie against a Judge of a Court of Record for a judicial act done by the Judge. The remedy of the aggrieved party against such an order is to approach the higher forum through appropriate proceedings. This immunity is essential to enable the Judges of the Court of Record to discharge their duties without fear or favour, though remaining within the bounds of their jurisdiction. Immunity from any civil or criminal action or a charge of contempt of court is essential for maintaining independence of the judiciary and for the strength of the administration of justice. The following passage from Oswaldss Contempt of Court, 3rd Edn., 1993 (Reprint), in this behalf is apposite:
An action will not lie against a Judge of a Court of Record for a wrongful commitment in the exercise of his judicial duties, any more than for an erroneous judgment(s). But the Divisional Court refused to strike out as disclosing no cause of action a statement of claim in an action for malicious prosecution brought against certain Judges of the Supreme Court of Trinidad for having (as it was alleged) of their own motion, and without any evidence, caused the plaintiff to be prosecuted and committed to prison for an alleged contempt of the Supreme Court in forwarding to the Governor of the Colony for transmission to the Queen-in-Council a petition of appeal complaining of the oppressive conduct of the defendants as Judges(t). At the trial of this case before Lord Coleridge, C.J., the jury found as regards one of the defendants that he had overstrained his judicial powers, and had acted in the administration of justice oppressively and maliciously to the prejudice of the plaintiff and to the perversion of justice. The jury assessed the damages at Pounds 500. Notwithstanding the verdict, Lord Coleridge ordered judgment to be entered for the defendant. This judgment was affirmed by the Court of Appeal. Lord Esher, MR, in delivering the judgment of the Court, said, If any Judge exercises his jurisdiction from malicious motives, he has been guilty of a gross dereliction of duty. And after saying that a Judge was liable to be removed from his office for such conduct, Lord Esher went on to say that the common law clearly was that no action lay against a Judge of a Court of Record for doing something within his jurisdiction but doing it maliciously and contrary to good faith. (emphasis ours) Thus no action could lie against the Chief Justice acting judicially for doing something within his jurisdiction even if the order is patently erroneous and unsustainable on merits. Commenting upon the extent of immunity which the Judges of the superior courts must have for preserving independence of the judiciary, the authors of Salmond and Heuston on the Law of Torts, 21st Edn., 1996 in Chapter XIX observe:
A Judge of one of the superior courts is absolutely exempt from all civil liability for acts done by him in the execution of his judicial functions. His exemption from civil liability is absolute, extending not merely to errors of law and fact, but to the malicious, corrupt or oppressive exercise of his judicial powers. For it is better that occasional injustice should be done and remain unredressed under the cover of this immunity than that the independence of the judicature and the strength of the administration of justice should be weakened by the liability of judges to unfounded and vexatious charges of errors, malice, or incompetence brought against them by disappointed litigants otherwise no man but a beggar, or a fool, would be a judge. (emphasis supplied)
35. Even under the Judges (Protection) Act, 1985 immunity has been given to judicial officers in relation to judicial work done by them as well as for the judicial orders made by them. The Statement of Objects and Reasons for introducing the Bill in relation to the 1985 Act which reads thus is instructive:
Judiciary is one of the main pillars of parliamentary democracy as envisaged by the Constitution. It is essential to provide for all immunities necessary to enable Judges to act fearlessly and impartially in the discharge of their judicial duties. It will be difficult for the Judges to function if their actions in court are made subject to legal proceedings, either civil or criminal.
37. This now takes us to that part of the order in which comments have been made regarding drawal of DA and non-payment of charges for occupation of Bungalow No. A/2, Jaipur by some of the former Chief Justices of the Rajasthan High Court including the present Chief Justice of India, Mr Justice J.S. Verma, till 1994. The insinuation made is that all of them had illegally drawn full dearness (sic daily) allowance of Rs 250 per day to which they were not entitled and their action amounted to misappropriation of public funds because it is alleged that each one of them had been allotted free accommodation by the Government of Rajasthan. Shethna, J. discussed this aspect of the case in some detail after relying upon materials which we do not find available in the record of Writ Petition No. 2949 of 1996 and concluded:
From the above, it is clear that no Chief Justice of this Court was paying any amount for his stay in Bungalow No. A/2 at Jaipur prior to 10-6-1994 but all of them have illegally drawn full DA of Rs 250 per day which is clear from Rule 2(1)(e) of the High Court Travelling Allowance Rules, 1966 and sub-rule (iv) of the Rules which is quoted in para 4 of the reply affidavit by the High Court itself. The present CJI Honble Mr Justice J.S. Verma was also one of the former Chief Justices of this Court from 1986 to 1989. He also initially stayed at Jaipur for 15 days and later on sat more at Jaipur than Jodhpur and illegally drew full DA of Rs 250 per day for his stay at Jaipur without paying any charges to which there was an audit objection which fact was on the record of this High Court. The High Court Judges are drawing and disbursing authorities and nobody else would come to know; then in that case they should be more careful while drawing such DA amount. It is nothing but a misappropriation of the public fund which is a criminal offence under the Penal Code.
38. Justification or propriety for making these comments apart, the validity of these comments/observations needs to be tested for procedural propriety, factual accuracy and visible legal support.
39. So far as the procedural propriety is concerned, it need not detain us much as admittedly, the comments have been made in respect of all the former Chief Justices of the Rajasthan High Court who held that high office till 1994, without putting them on any notice and behind their back. All of them have been condemned unheard. It needs no discussion to say, in the light of the settled law, that an order of this type which violates essential principles of natural justice and is made behind the back of the affectee is wholly unsustainable. On this short ground, all those comments/observations and conclusions arrived at by Shethna, J. are required to be quashed and expunged. The learned Attorney General submitted that the observations (supra) were both factually and legally not sustainable and urged that keeping in view the high office of Chief Justice of India we should test legal and factual validity of the observations also. We therefore do not propose to rest our order on grounds of procedural infirmities and judicial propriety only. Both factually as well as legally the observations/comments, tend, as the discussion shall presently expose, to be the result of total disregard for propriety and decency as to make the motives of the author suspect and in the process the Judge has made himself coram non judice.
40. Vide Section 2 of the High Court of Rajasthan (Establishment of a Permanent Bench at Jaipur) Order, 1976, a permanent Bench of the Rajasthan High Court at Jaipur was established at Jaipur.
2. Establishment of a Permanent Bench of the Rajasthan High Court at Jaipur.There shall be established a permanent Bench of the High Court of Rajasthan at Jaipur, and such Judges of the High Court of Rajasthan, being not less than five in number, as the Chief Justice of that High Court may, from time to time, nominate, shall sit at Jaipur in order to exercise the jurisdiction and power for the time being vested in that High Court in respect of cases arising in the districts of Ajmer, Alwar, Bharatpur, Bundi, Jaipur, Jhalawar, Jhunjhunu, Kotah, Sawai Madhopur, Sikar and Tonk:.
(iii) 2011 14 SCC 187 (State of West Bengal and others vs. Debasish Mukherjee and others) 35. We may next consider the correctness of the finding of the Division Bench that the order dated 13-2-2003 of the Chief Justice is not justiciable and the State Government cannot challenge it in a court of law. At the outset, we may note that in a democracy, governed by the rule of law, where arbitrariness in any form is eschewed, no Government or authority has the right to do whatever it pleases. Where the rule of law prevails, there is nothing like unfettered discretion or unaccountable action. Even prerogative power is subject to judicial review, but to a very limited extent. The extent, depth and intensity of judicial review may depend upon the subject-matter of judicial review (vide observation of the Constitution Bench in B.P. Singhal v. Union of India).
36. The fact that in regard to certain types of action or orders of the Chief Justice, the scope of judicial review may be very narrow and limited is different from saying that an order of the Chief Justice granting certain relief to the High Court employees whose service conditions are governed by the rules, is not justiciable. Such orders are justiciable.
42. In High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal, this Court was considering the correctness of a direction given under Article 226 by a Division Bench of the High Court to the Registrar to prepare a report regarding the practicability of certain posts being manned by the officers from the establishment of the High Court instead of by the Higher Judicial Officers and place it before the Full Court through the Chief Justice for taking a decision whether the Judicial Officers could be relieved of such administrative posts in the High Court. This Court found that Rules 2, 2-A of, and Schedule I to the Rajasthan High Court (Conditions of Service of Staff) Rules, 1953, made by the Chief Justice in exercise of power conferred by Article 229, specified the posts on which officers of the Rajasthan Higher Judicial Service or Rajasthan Judicial Service were to be appointed. The method of recruitment had also been indicated. All appointments on these posts were to be made by the Chief Justice. The Rules could be altered, amended or rescinded only by the Chief Justice who alone has the rule-making power.
43. This Court in Ramesh Chand Paliwal case held that the real purport of the directions issued by the Division Bench on the judicial side was to override not only the constitutional provisions contained in Article 229 but also the Rules made in exercise of powers available to the Chief Justice under that article. Even if the Registrar, in compliance with the impugned directions, is to report that the posts on which officers of the Rajasthan Higher Judicial Service or the Rajasthan Judicial Service are appointed on deputation, could well be manned by the High Court staff itself and even if such report is placed before the Full Court, the Full Court cannot give a direction to the Chief Justice not to fill up those posts by bringing officers on deputation but to fill up those posts by promotion from amongst the High Court staff. A Judge of the High Court individually or all the Judges sitting collectively, as in the Full Court, cannot either alter the constitutional provisions or the rules made by the Chief Justice. The Chief Justice has been vested with wide powers to run the High Court administration independently so as not to brook any interference from any quarter, not even from his Brother Judges who, however, can scrutinise his administrative action or order, on the judicial side like the action of any other authority.
44. It is, therefore, clear that the Chief Justice has the power and authority to grant premature increments in exceptional circumstances. But the Chief Justice cannot grant such relief in an irrational or arbitrary manner. If the Rules provide that premature increments could be granted in exceptional circumstances, there should be a reference to the existence of exceptional circumstances and application of mind to those exceptional circumstances. When neither the recommendation considered by the Chief Justice nor the order of the Chief Justice referred to any exceptional circumstances and did not even refer to the Rule relating to grant of relief in exceptional circumstances, the question of assuming exceptional circumstances does not arise. The order dated 13-2-2003 is justiciable.
11. On the other hand, learned counsel appearing for the respondent/Registrar General, High Court of Madras, would contend that there was a representation by the petitioner for constitution of a Special Bench and it is for the Hon'ble Chief Justice to take a decision in the matter, if there is a necessity. But, it is the exclusive prerogative right of the Hon'ble Chief Justice or the Hon'ble Acting Chief Justice and it cannot be questioned in Public Interest Litigation, as no judicial review is available on the administrative functions of the Chief Justice. By placing reliance on various decisions of the Supreme Court, learned counsel would contend that the Judges of the Higher Judiciary in India are constitutional functionaries and not government servants or government officials, to bring them under the definition of the State under Article 12 of the Constitution of India. They are not 'persons' or 'authorities' or 'government' against whom writs can be issued under Article 226 of the Constitution of India. Therefore, a writ of mandamus cannot be issued against the High Court. He also pointed out by placing material information, that the Hon'ble Division Bench normally disposes of the Habeas Corpus Petitions commensurate to the cases filed everyday and thereby, the pendency has been reduced drastically. This was achieved even in the absence of any Special Bench for that purpose.
12. To substantiate his stand, learned counsel appearing for the respondent has relied on the following decisions:
(i) (1996) 6 SCC 587 (Inder Mani and others vs. Matheshwari Prasad and others) 7. The Registrars affidavit discloses a somewhat alarming situation. 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. Individual puisne Judges cannot pick and choose the matters they will hear or decide nor can they decide whether to sit singly or in a Division Bench. When the Chief Justice had constituted a Division Bench of Justice V.N. Khare and the learned Judge, it was incumbent upon the learned Judge to sit in a Division Bench with Justice V.N. Khare 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 on 22-12-1995, 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. We deprecate this behaviour which totally undermines judicial discipline and proper functioning of the High Court.''
(ii) (1998) 1 SCC 1 (State of Rajasthan vs. Prakash Chand and others) 12. In State v. Devi Dayal, a Division Bench of the Allahabad High Court considered the scope and powers of the Chief Justice under the Constitution with particular reference to Rule 1 Chapter V of the Rules of that Court (which is in pari materia with Rule 54 of the Rajasthan High Court Rules, 1952) and held:
Per Mukerji, J.:
It is clear to me, on a careful consideration of the constitutional position, that it is only the Chief Justice who has the right and the power to decide which Judge is to sit alone and which cases such Judge can decide; further it is again for the Chief Justice to determine which Judges shall constitute Division Benches and what work those Benches shall do. Under the rules of this Court, the rule that I have quoted above, it is for the Chief Justice to allot work to Judges and Judges can do only such work as is allotted to them.
It is not, in my view, open to a Judge to make an order, which could be called an appropriate order, unless and until the case in which he makes the order has been placed before him for orders either by the Chief Justice or in accordance with his directions. Any order which a Bench or a Single Judge may choose to make in a case that is not placed before them or him by the Chief Justice or in accordance with his directions is an order which, in my opinion, if made, is without jurisdiction. (emphasis ours) In his separate but concurring opinion H.P. Asthana, J. observed:
Rule 1, Chapter V, of the Rules of this Court, provides that Judges shall sit alone or in such Division Courts as may be constituted from time to time and do such work as may be allotted to them by order of the Chief Justice or in accordance with his directions.
It will appear from a perusal of the above provisions that the High Court as a whole consisting of the Chief Justice and his companion Judges has got the jurisdiction to entertain any case either on the original or on the appellate or on the revisional side for decision and that the other Judges can hear only those matters which have been allotted to them by the Chief Justice or under his directions. It, therefore, follows that the Judges do not have any general jurisdiction over all the cases which the High Court as a whole is competent to hear and that their jurisdiction is limited only to such cases as are allotted to them by the Chief Justice or under his directions. (emphasis supplied)
13. A Full Bench of the Rajasthan High Court in Niranjan Singh v. State of Rajasthan also examined the ambit and scope of the provisions of the Rajasthan High Court Rules, 1952 and in particular of Rules 54, 55, 61, 66, 74, etc. with regard to the powers of the Chief Justice in the matter of constitution of Benches and allocation of work to his companion Judges. The Bench opined:
It is therefore the responsibility of the Chief Justice to constitute the Division Courts of Benches. The Judges are required to sit alone or in the Division Benches and, in either case, do such work as may be allotted to them by order of the Chief Justice or in accordance with his direction. This power to allot the work to the Judges cannot be taken away, in face of the clear provision of Rule 54, merely because a date of hearing, has been fixed in a case by a particular Bench.
The Chief Justice has therefore the power from time to time to direct that any particular case or class of cases may be heard by a Bench of two or more Judges even though it may, ordinarily fall to be heard by a Single Judge. It is well settled that the meaning of the words from time to time is that after once acting the donee of the power may act again; and either independently of, or by adding to, or taking from or reversing altogether, his previous act, Strouds Judicial Dictionary. It cannot, in such a case, be said that the person who has the power to act has completely discharged his duty when he has once acted. The words from time to time have therefore been interpreted to mean as and when it is appropriate so to do: Von Dembinska, Re, ex p. The Debtor. It is thus 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.
There is nothing in the rule to justify the argument that such a case should always be treated as tied up with a Bench simply because it has once fixed the date of its hearing or that with the exception of a case in which a Bench has directed the issue of notice to the opposite party or passed an ex parte order all other cases should be deemed to be part-heard. On the other hand, the use of the word ordinarily goes to show that if there are extraordinary reasons, even a part-heard case may not be laid before the same Bench for disposal. So far as the second sentence of Rule 66(1) is concerned, it is really in the nature of an illustration, or an explanation. (emphasis ours)
14. In State of Maharashtra v. Narayan Shamrao Puranik referring to the power of the Chief Justice to make roster, this Court opined: (SCC p. 444, para 4) The Chief Justice is the master of the roster. He 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.
15. Again, a Full Bench of the Madras High Court in Mayavaram Financial Corpn. Ltd. v. Registrar of Chits5 opined:
The Honble 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 Honble the Chief Justice.
16. More recently, in the case of Inder Mani v. Matheshwari Prasad, a Division Bench of this Court has opined: (SCC p. 589, para 7) 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. Individual puisne Judges cannot pick and choose the matters they will hear or decide nor can they decide whether to sit singly or in a Division Bench. When the Chief Justice had constituted a Division Bench of Justice V.N. Khare and the learned Judge, it was incumbent upon the learned Judge to sit in a Division Bench with Justice V.N. Khare 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 on 22-12-1995, 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. We deprecate this behaviour which totally undermines judicial discipline and proper functioning of the High Court.
22. After referring to the provisions of the Rules of the Allahabad High Court and in particular Rule 1 of Chapter V, which provides that Judges shall sit alone or in such Division Courts as may be constituted by the Chief Justice from time to time and do such work as may be allotted to them by order of the Chief Justice or in accordance with his directions and Rule 6 of Chapter V which inter alia provides:
6. The Chief Justice may constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case. In the latter event the decision of such Bench on the question so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case after deciding the remaining questions, if any, arising therein. and a catena of authorities, rejected the arguments of the learned counsel and opined that the order of the Chief Justice, on an application filed by the Chief Standing Counsel, to refer a case, which was being heard by the Division Bench, for hearing by a larger Bench of three Judges because of the peculiar facts and circumstances as disclosed in the application of the Chief Standing Counsel, was a perfectly valid and a legally sound order. The Bench speaking through S. Saghir Ahmad, J. (as His Lordship then was) said:
Under Rule 6 of Chapter V of the Rules of Court, it can well be brought to the notice of the Chief Justice through an application or even otherwise that there was a case which is required to be heard by a larger Bench on account of an important question of law being involved in the case or because of the conflicting decisions on the point in issue in that case. If the Chief Justice takes cognizance of an application laid before him under Rule 6 of Chapter V of the Rules of Court and constitutes a Bench of two or more Judges to decide the case, he cannot be said to have acted in violation of any statutory provisions. The learned Judge then went on to observe:
In view of the above, it is clear that the Chief Justice enjoys a special status not only under the Constitution but also under Rules of Court, 1952 made in exercise of powers conferred by Article 225 of the Constitution. The Chief Justice alone can determine jurisdiction of various Judges of the Court. He alone can assign work to a Judge sitting alone and to the Judges sitting in Division Bench or to Judges sitting in Full Bench. He alone has the jurisdiction to decide which case will be heard by a Judge sitting alone or which case will be heard by two or more Judges.
The conferment of this power exclusively on the Chief Justice is necessary so that various courts comprising of the Judges sitting alone or in Division Bench etc., work in a coordinated manner and the jurisdiction of one court is not overlapped by other court. If the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial functioning of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case. The nucleus for proper functioning of the Court is the self and judicial discipline of Judges which is sought to be achieved by Rules of Court by placing in the hands of the Chief Justice full authority and power to distribute work to the Judges and to regulate their jurisdiction and sittings. (emphasis ours)
23. The above opinion appeals to us and we agree with it. Therefore, from a review of the statutory provisions and the cases on the subject as rightly decided by various High Courts, to which reference has been made by us, it follows that no Judge or a Bench of Judges can assume jurisdiction in a case pending in the High Court unless the case is allotted to him or them by the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the Court. No departure from it can be permitted. If every Judge of a High Court starts picking and choosing cases for disposal by him, the discipline in the High Court would be the casualty and the administration of justice would suffer. No legal system can permit machinery of the Court to collapse. The Chief Justice has the authority and the jurisdiction to refer even a part-heard case to a Division Bench for its disposal in accordance with law where the Rules so demand. It is a complete fallacy to assume that a part-heard case can under no circumstances be withdrawn from the Bench and referred to a larger Bench, even where the Rules make it essential for such a case to be heard by a larger Bench.
58. It is educative to quote the views of Benjamin Cardozo, 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. The manner in which proceedings were taken by the learned Judge in relation to the writ petition disposed of by a Division Bench exposes a total lack of respect for judicial discipline. Judicial authoritarianism is what the proceedings in the instant case smack of. It cannot be permitted under any guise. Judges must be circumspect and self-disciplined in the discharge of their judicial functions. The virtue of humility in the Judges and a constant awareness that investment of power in them is meant for use in public interest and to uphold the majesty of rule of law, would to a large extent ensure self-restraint in discharge of all judicial functions and preserve the independence of judiciary. It needs no emphasis to say that all actions of a Judge must be judicious in character. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is the greatest threat to the independence of the judiciary. Eternal vigilance by the Judges to guard against any such latent internal danger is, therefore, necessary, lest we suffer from self-inflicted mortal wounds. We must remember that the Constitution does not give unlimited powers to anyone including the Judge of all levels. The societal perception of Judges as being detached and impartial referees is the greatest strength of the judiciary and every member of the judiciary must ensure that this perception does not receive a setback consciously or unconsciously. Authenticity of the judicial process rests on public confidence and public confidence rests on legitimacy of judicial process. Sources of legitimacy are in the impersonal application by the Judge of recognised objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices. It is most unfortunate that the order under appeal founders on this touchstone and is wholly unsustainable.
59. From the preceding discussion the following broad CONCLUSIONS emerge. This, of course, is not to be treated as a summary of our judgment and the conclusions should be read with the text of the judgment:
(1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.
(2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted.
(3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions.
(4) That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges constituting the bench themselves and one or both the Judges constituting such bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice.
(5) That the Chief Justice can take cognizance of an application laid before him under Rule 55 (supra) and refer a case to the larger bench for its disposal and he can exercise this jurisdiction even in relation to a part-heard case.
(8) That Shethna, J. had no authority or jurisdiction to send for the record of the disposed of writ petition and make comments on the manner of transfer of the writ petition to the Division Bench or on the merits of that writ petition.
(9) That all comments, observations and findings recorded by the learned Judge in relation to the disposed of writ petition were not only unjustified and unwarranted but also without jurisdiction and make the Judge coram non judice.
(10) That the allegations and comments made by the learned Judge against the Chief Justice of the High Court, the Advocate of the petitioner in the writ petition and the learned Judges constituting the Division Bench which disposed of Writ Petition No. 2949 of 1996 were uncalled for, baseless and without any legal sanction.
(11) That the observations of the learned Judge against the former Chief Justices of the High Court of Rajasthan to the effect that they had illegally drawn full daily allowance while sitting at Jaipur to which they were not entitled, is factually incorrect, procedurally untenable and legally unsustainable.
(12) That the finding recorded by the learned Judge against the present Chief Justice of India, Mr Justice J.S. Verma, that till his elevation to the Supreme Court, he had, as Chief Justice of the Rajasthan High Court, illegally drawn a daily allowance of Rs 250 while sitting at Jaipur and had thereby committed criminal misappropriation of public funds lacks procedural propriety, factual accuracy and legal authenticity. The finding is wholly incorrect and legally unsound and makes the motive of the author not above personal pique so wholly taking away dignity of the judicial process.
(13) That the disparaging and derogatory comments made in most intemperate language in the order under appeal do no credit to the high office of a High Court Judge.
(14) That the direction of Shethna, J. to issue notice to the Chief Justice of the High Court to show cause why contempt proceedings be not initiated against him, for transferring a part-heard writ petition from his Bench to the Division Bench for disposal, is not only subversive of judicial discipline and illegal but is also wholly misconceived and without jurisdiction.
(iii) (2000) 2 SCC 391 (R.Rathinam vs. State by DSP, District Crime Branch, Madurai and another) :
9. Every matter to be decided by a High Court is normally decided by a two-Judge Bench of the High Court.
For achieving expediency in disposal of cases, statutes have provided that certain categories of cases can be heard and disposed of by Single Judges of the High Court. But it must be pointed out that all matters which can be heard and decided by a Single Judge, can as well be heard and decided by a Division Bench but not vice versa, subject to statutory restrictions passed by the legislature. It is the prerogative of the Chief Justice of a High Court to allot cases to different Judges of the High Court for disposal, subject to such statutory provisions.
10. In State of Rajasthan v. Prakash Chand, a three-Judge Bench of this Court has held that the Chief Justice of the High Court has a prerogative to distribute business of the High Court, both judicial and administrative: (SCC Headnote) The Chief Justice is the master of the roster. He alone has the right and the 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 and also as which Judges shall constitute a Division Bench and what work those Benches shall do.
11. Though the aforesaid position has not been deviated from by the Division Bench of the Madras High Court it is necessary to remind all concerned of the legal principles involving the prerogative of a Chief Justice. The Division Bench has gone wrong in holding that the petition submitted by the advocates concerned was not maintainable at all. Refusing to exercise the suo motu powers contemplated in Section 439(2) cannot be on such a fallacious premise. The Division Bench ought to have considered the petitions on merits.
(iv) (2005) 11 SCC 312 (Rajiv Ranjan Singh 'Lalan' and another vs. Union of India and others 3. As a contention is now raised, before the learned Acting Chief Justice, that this Court could not constitute a Bench, we clarify that the order reproduced above was at the behest of and with consent of all the parties. This Court had only requested the learned Acting Chief Justice to constitute a Bench. Undoubtedly the prerogative to constitute a Bench is with the Acting Chief Justice and the above order in no way expresses any lack of confidence in the Acting Chief Justice nor takes away his prerogative to constitute the Bench.
4. We, however, wish to clarify that the constitution of a Bench is an administrative function to be performed by the Chief Justice. In constituting the Bench the parties are not to be heard. The parties have no say in such matters at this stage.
5. We, therefore, with the above clarification request the learned Acting Chief Justice to constitute a Bench to hear these cases. In view of the fact that the vacations are fast approaching we request the Acting Chief Justice to constitute a Bench within a period of two days from the date of receipt of a copy of this order. The Bench then to take up these matters forthwith for hearing on a day-to-day basis and to endeavour to dispose of these matters before the ensuing vacations. All parties concerned expressly consent to these directions and state that they shall proceed with those cases. In other words, no party will ask for or be granted any adjournment.
(v) (2008) 3 SCC 542 (Divine Retreat Centre vs. State of Kerala and others) :
67. It is clear from the record that the learned Judge was not dealing with any public interest litigation cases as on the date of entertaining anonymous petition. It is beyond pale of any doubt and controversy that the administrative control of the High Court vests in the Chief Justice of the High Court alone and it is his prerogative to distribute business of the High Court, both judicial and administrative; that the Chief Justice is the master of the roster. He alone has the prerogative to constitute Benches of the Court and allocate cases to the Benches so constituted; and the puisne judges can only do that work as is allotted to them by the Chief Justice or under his directions; that the Puisne Judges cannot pick and choose any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice. (See State of Rajasthan v. Prakash Chand.)
68. This Court in more than one case expressed its reservation about individual Judges entertaining the communications and petitions addressed to them to pass orders on judicial side. In Bandhua Mukti Morcha v. Union of India, the Court in clear and unequivocal terms declared that communications and petitions addressed to a particular Judge are improper and violate the institutional personality of the court. They also embarrass the Judge to whom they are personally addressed.
54. 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. (Bandhua Mukti Morcha case, SCC p. 229, para 54) (emphasis supplied)
69. In our view, the learned Judge ought not to have entertained the anonymous petition, contents of which remain unverified and made it basis for setting the law in motion as against the appellant as he was not entrusted with the judicial duty of disposing of PIL matters.
70. Institutions own reputation is a priceless treasure. History teaches us that the independence of the judiciary is jeopardised when courts become embroiled in the passions of the day and assume primary responsibility to resolve the issues which are otherwise not entrusted to them by adopting procedures which are otherwise not known.
71. There is heavy duty cast upon the constitutional courts to protect themselves from the onslaught unleashed by unscrupulous litigants masquerading as public interest litigants. The individual Judges ought not to entertain communications and letters personally addressed to them and initiate action on the judicial side based on such communication so as to avoid embarrassment; that all communications and petitions invoking the jurisdiction of the Court must be addressed to the entire Court, that is to say, the Chief Justice and his companion Judges. The individual letters, if any, addressed to a particular Judge are required to be placed before the Chief Justice for consideration as to the proposed action on such petitions. Each Judge cannot decide for himself as to what communication should be entertained for setting the law in motion be it in PIL or in any jurisdiction.
(vi) (2010) 15 SCC 264 (High Court of Karnataka vs. Commissioner of Customs and another) :
4. It may be pertinent to mention that, presently, the Honble Chief Justice of the High Court is not taking up judicial matters but continues to function as Chief Justice for all purposes on administrative side including fixing rosters, etc., which, according to us, is exclusively his prerogative.
(vii) (2013) 2 SCC 398 (Kishore Samrite vs. State of Uttar Pradesh and others) 25. The roster and placing of cases before different Benches of the High Court is unquestionably the prerogative of the Chief Justice of that Court. In the High Courts, which have Principal and other Benches, there is a practice and as per rules, if framed, that the seniormost Judge at the Benches, other than the Principal Bench, is normally permitted to exercise powers of the Chief Justice, as may be delegated to the seniormost Judge. In absence of the Chief Justice, the seniormost Judge would pass directions in regard to the roster of the Judges and listing of cases. Primarily, it is the exclusive prerogative of the Chief Justice and does not admit any ambiguity or doubt in this regard.
29. Judicial discipline and propriety are the two significant facets of administration of justice. Every court is obliged to adhere to these principles to ensure hierarchical discipline on the one hand and proper dispensation of justice on the other. Settled canons of law prescribe adherence to the rule of law with due regard to the prescribed procedures. Violation thereof may not always result in invalidation of the judicial action but normally it may cast a shadow of improper exercise of judicial discretion. Where extraordinary jurisdiction, like the writ jurisdiction, is very vast in its scope and magnitude, there it imposes a greater obligation upon the courts to observe due caution while exercising such powers. This is to ensure that the principles of natural justice are not violated and there is no occasion of impertinent exercise of judicial discretion.
(viii) (1991) 2 L.W. 80 (Mayavaram Financial Corporation Ltd. vs. Registrar of Chits, Pondicherry) 26. To sum up:
(1) Code of Civil Procedure does not apply to a writ proceeding under Article 226 of the Constitution of India. Courts, however, sometimes constructively apply certain basic principles enshrined therein to the writ proceedings, on grounds of public policy or dictates of reason or necessity whenever it is found to be essential for the effective administration of justice.
(2) ...
(3) 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.
(4) A Judge or the Judges constituting the Bench will not decide whether to entertain a review petition or not unless the same is placed before him or them under the orders of the Hon'ble the Chief Justice.
(5) Unless it is on account of exceptional circumstances or to meet an extra-ordinary situation of the Hon'ble the Chief Justice decides to allot the work to some other Judge or Judges, as the case may be, we consider it to be prudent as well as desirable that the Judge or Judges, who passed the judgment/decree or made the order sought to be renewed, hear the review petition and in the case of the judgment decree or order of a bench, the Judge or the Judges who are available are associated as members of the Bench.
(ix) 2000 (2) L.W. 28 (S.Gopal Raju vs. Hon'ble Chief Justice, High Court, Madras and others) ''24. In Halsbury's Laws of England, Fourth Edition Volume 1, pages 117 to 125, paragraph 99, the law regarding mandamus is stated as follows:
An order of mandamus will be granted ordering that to be done and for this rule to apply, it is not necessary that the party or coporation on whom the statutory duty is imposed should be a public official or an official body. However, for an order of mandamus to issued for the enforcement of a statutory right, it must appear that the statute in question imposes a duty, the performance or non-performance of which is not a matter of discretion, and if a power of a discretion only, as distinct from a duty, 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 duty to exercise a genuine discretion or a discretion based on proper legal principles.
25. 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 duty 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.
27. 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 1991-2 L.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 Bench 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.
(x) (2000) 9 SCC 572 (State of Karnataka vs. State of Andhra Pradesh and others) :
160. The submissions have been made out on a total perspective of the situation and without dilating any further I record my concurrence therewith. The law as regards the issuance of a mandatory order or writ depends upon the authority exercising the power as well as the nature of the function and obligations arising therefrom. It is settled law that such a direction cannot possibly be granted so as to compel an authority to exercise a power which has a substantial element of discretion. In any event the mandamus to exercise a power which is legislative in character cannot be issued and I am in full agreement with the submission of Mr Solicitor General on this score as well. At best it would only be an issue of good governance but that by itself would not mean and imply that the Union Government has executive power even to force a settlement upon the State.
(xi) (2004) 2 SCC 173 (Union of India vs. Kishan K.Sharma and others) :
7. Mr Venkataramani, learned Senior Counsel appearing on behalf of the private respondents, on the other hand, would at the outset draw our attention to the fact that the impugned judgment has already been implemented by the appellant. The learned counsel pointed out that in this case the writ petitioners were placed in the same scale of pay as that of the Personal Assistants of the Director and/or Joint Secretaries and the Central Government had accepted the recommendations made by the High Court in this behalf and in that view of the matter, having regard to the office memorandum dated 31-7-1990, the appellants should have also accepted the recommendations of the High Court when the scales of pay were revised in terms of a Presidential Order. The learned counsel submitted that although in a given case it may not be permissible for the High Court to issue a writ of or in the nature of mandamus directing a statutory authority to pass an order or direct discharge of the statutory function in a particular manner but in this case such an order had to be passed as despite recommendations made by the Chief Justice of the Delhi High Court, no order thereupon was passed for a long time.
8. The extent and scope of judicial review for the purpose of issuance of writ of or in the nature of mandamus for the grant of scale has been considered by us in Union of India v. S.B. Vohra which is also being disposed of on this day.
9. Following the said decision, we are of the opinion, although the High Court was not correct in issuing the impugned directions but having regard to the fact that the matter is an old one and the direction of the High Court has already been acted upon, the impugned judgment need not be interfered with. The appeal is, therefore, dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
13. We have given thoughtful consideration to the submissions made by the learned counsel on either side and perused the records and the decisions relied on by them.
14. A panoramic view of the case would reveal that the petitioner, who is the Director of Prisoners Rights Forum, Chennai, a registered public Trust, with an object to create law awareness among the prisoners and to help them enforce their human rights, constitutional rights and legal rights, has filed this Public Interest Litigation Petition praying for a mandamus to the High Court to constitute a Special Bench for deciding the Habeas Corpus Petitions challenging the preventive detention of the prisoners, as there were 1360 prisoners detained in the Central Prison, Puzhal, Chennai, under Act 14 of 1982. As there was a scuffle inside the Prison on 24.03.2014 and hunger strike was staged by the prisoners demanding early disposal of their H.C.Ps. pending before this Court, the petitioner represented to the Honourable Acting Chief Justice on 04.04.2014 explaining the reasons for the constitution of a Special Bench for disposing of the pending H.C.Ps. on the fact that a large number of prisoners have completed more than eight months of detention.
15. To the above grievance and the request made by the petitioner, the respondent/Registrar General has come out with a reply statement informing that a number of H.C.Ps. challenging preventive detention under Act 14 have been filed, denying the statement of the petitioner that this Court finds it difficult to dispose of the H.C.Ps. and that constituting a Special Bench for that purpose is not correct. According to the respondent, though the petitioner has made a representation to the Hon'ble Acting Chief Justice of this Court on 04.04.2014 seeking to constitute a Special Bench for early disposal of the H.C.Ps. on the basis that the prisoners detained under Act 14 are entitled to enforce their fundamental right to speedy justice under Article 21 of the Constitution of India, it is violative under Articles 14 and 21 of the Constitution of India and this PIL praying for a mandamus to the High Court is not maintainable for a number of reasons.
16. The respondent would contend that the right under Article 21 of the Constitution of India to have speedy justice, though available to the prisoners, cannot be enforced as against the Higher Judiciary in view of the constitutional limitations. A mandamus to constitute a Special Bench to hear the Habeas Corpus Petitions cannot be issued against the High Court represented by the Registrar General, who has no power to constitute Benches. The constitution of a Special Bench is the exclusive prerogative of the Hon'ble Chief Justice or the Hon'ble Acting Chief Justice, as the case may be. Though the petitioner having represented to the Chief Justice, has filed this Writ Petition against the High Court represented by the Registrar General, in essence, it is a Writ Petition to issue a mandamus to the Hon'ble Acting Chief Justice to constitute a Special Bench as demanded by the petitioner.
17. By a plethora of decisions, it has been clearly laid down that constitution of Benches is the exclusive prerogative of the Hon'ble Chief Justice or the Acting Chief Justice and such power is expressly saved under Article 225 of the Constitution of India. Order 1 of the Appellate Side Rules of this Court also expressly provides so. Such prerogative would necessarily mean an exclusive right, power privilege or immunity, acquired by virtue of office. Hence the term prerogative necessarily implies a high degree of discretion having been vested in the authority enjoying the prerogative. Therefore, such high discretion excludes the existence of any duty and it is settled law that in the absence of legal duty, no mandamus can be issued. It is also settled law that in the case of discretion, mandamus cannot be issued directing the discretion to be exercised in a particular way.
18. Further, it is the contention of the respondent that Fundamental Rights under Part III of the Constitution of India are enforceable against the 'State' as defined in Article 12 of the Constitution of India to mean the Government and Parliament of India, the Government and Legislature of the states, all local and other authorities within the territory of India or under the control of the Government of India. The Judges, particularly the Judges of Higher Judiciary in India are Constitutional Functionaries and not government servants or government officials, as has been time and again laid down by a number of decisions of the Apex Court and they are not 'persons' or 'authorities' or 'government' against whom writs can be issued under Article 226 of the Constitution of India. Therefore, an action to enforce Fundamental Rights under Articles 14 and 21 cannot be sustained as against the Judiciary.
19. Also, it is informed in the reply statement of the respondent that there were about 1,632 Habeas Corpus Petitions pending before this Court as on 31.05.2014. Out of such petitions, 1579 petitions arose under Act 14 of 1982. Even in the normal course of hearing, the Hon'ble Division Bench disposes of the Habeas Corpus Petitions commensurate to the cases filed everyday and thereby, the pendency has been reduced drastically. This was achieved in the absence of any Special Bench for that purpose. Therefore, there is no necessity for constituting a Special Bench to deal with Habeas Corpus Petitions.
20. Under the circumstances, the question that arises for consideration is, whether a mandamus can be issued against the High Court/Chief Justice in a Public Interest Litigation to constitute a Special Bench and such power of judicial review is available under Article 226 of the Constitution of India ?
21. Before delving into the matter, a trace of the historical background of the High Court of Madras assumes much significance.
Historical background of High Court of Madras and Derivation of Power by Chief Justice :
22. The Charter Act or The Indian High Courts Act,1861, in short, "the Act", which was an Act for establishment of High Courts of Judicature in India, was enacted by the Queen's Most Excellent Majesty Victoria, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the Parliament assembled, and by the Authority of the same, that it shall be lawful for Her Majesty, by Letters Patent under the Great Seal of the United Kingdom, to erect and establish a High Court of Judicature at Fort William in Bengal for the Bengal Division of the Presidency of Fort William aforesaid, and by like Letters Patent to erect and establish like High Courts at Madras and Bombay for those Presidencies respectively, such High Courts to be established in the said several Presidencies at such time or respective times as to Her Majesty may seem fit, and the High Court to be established under any such Letters Patent shall be deemed to be established from and after the publication of such Letters Patent in the same Presidency or such other time as in such Letters Patent may be appointed in that behalf. The High Court of Judicature at Madras, one of the three High Courts in India established at the Presidency Towns by Letters Patent, was granted by Her Majesty Queen Victoria on 26th June 1862. Section 1 of the Act in this regard is relevant. It reads as under :
"1. It shall be lawful for Her Majesty, by Letters Patent under the Great Seal of the United Kingdom, to erect and establish a High Court of Judicature at Fort William in Bengal for the Bengal Division of the Presidency of Fort William aforesaid, and by like Letters Patent to erect and establish like High Courts at Madras and Bombay for those Presidencies respectively, such High Courts to be established in the said several Presidencies at such Time or respective Times as to Her Majesty may seem fit, and the High Court to be established under any such Letters Patent in and of the said Presidencies shall be deemed to be established from and after the Publication of such Letters Patent in the same Presidency or such other Time as in such Letters Patent may be appointed in that Behalf."
23. By the Act, the Supreme & Sadar Diwani Adalats were amalgamated. The Act vested in Queen of England the power to issue Letters Patent to erect and establish High Courts of Calcutta, Madras and Bombay. The objective of the Act was to effect a fusion of the Supreme Courts and the Sadar Adalats in the three Presidencies and this was to be consummated by issuing Letters Patent. The jurisdiction and powers exercised by these Courts was to be assumed by the High Courts. The High Courts had Original as well as Appellate Jurisdiction, the former being derived from the Supreme Court and the latter from the Sadar Diwani and Sadar Foujdari Adalats, which were merged in the High Courts. While the Charter of High Court of Calcutta was issued on 14th May, 1862, the Charter of High Court of Madras and Bombay was issued on June 26,1862.
24. Sections 5, 13 and 14 of the Act go thus :
24.1. Section 5 :
"5. The Chief Justice of any such High Court shall have Rank and Precedence before the other Judges of the same Court, and such of the other Judges of such Court as on its Establishment shall have been transferred thereto from the Supreme Court shall have Rank and Precedence before the Judges of the High Court not transferred from the Supreme Court, and except as aforesaid, all the Judges of each High Court shall have Rank and Precedence according to the seniority of their Appointments, unless otherwise provided in their Patents.
24.2. Section 13 :
"13. Subject to any Laws or Regulations which may be made by the Governor-General in Council, the High Court established in any Presidency under this Act, may by its own Rules provide for the Exercise by One or more Judges, or by Division Courts, constituted by two or more Judges of the said High Court, of the original and appellate Jurisdiction vested in such Court, in such Manner as may appear to such Court to be convenient for the due Administration of Justice."
24.3. Section 14 :
"14. The Chief Justice of each High Court shall, from Time to Time, determine what Judge in each case shall sit alone, and what Judges of the Court, whether with or without the Chief Justice, shall constitute the several Division Courts as aforementioned."
25. Section 5 of the Act contemplates that the Chief Justice of any such High Court shall have Rank and Procedure before the other Judges of the same Court. Section 13 denotes that subject to any laws or regulations which may be made by the Governor-General in Council, the High Court established in any Presidency under the Act, may by its own rules provide for the exercise by one or more judges, or by Division Courts, constituted by two or more judges of the said High Court, of the original and appellate jurisdiction vested in such Court, in such manner as may appear to such Court to be convenient for the due administration of justice. Under Section 14, the Chief Justice of each High Court shall, from time to time, determine what judge in each case shall sit alone, and what judges of the Court, whether with or without the Chief Justice, shall constitute the Division Courts.
26. Thereafter, The Indian High Courts Act, 1865, was enacted to extend the term for granting fresh Letters Patent for the High Courts in India and to make further provision respecting the territorial jurisdiction of the said Courts.
27. The Charter Act was repealed and re-enacted with slight modifications by the Government of India Act,1915. In this connection, Sections 101, 106 and 108 of the Government of India Act,1915 are relevant and they run as under :
27.1. Section 101 :
"101.Constitution of high courts.- (1) The high courts referred to in this Act, are the high courts of judicature for the time being established in British India by letters patent.
(2) Each high court shall consist of a chief justice and as many other judges as His Majesty may think fit to appoint :
xxxxxxxx (3) - (5) xxxxx"
27.2. Section 106 :
"106. Jurisdiction of high courts.- (1) The several High Courts are courts of record and have all such jurisdiction, original and appellate, including admiralty jurisdiction, in respect of offences committed on the high seas, and all such powers and authority over or in relation to the administration of justice, including power to appoint clerks and other ministerial officers of the court, and power to make rules for regulating the practice of the court, as are vested in them by letters patent, and, subject to the provisions of any such letters patent, all such jurisdictions, powers and authority as are vested in those courts respectively at the commencement of this Act.
[(1a) The letters patent establishing or vesting jurisdiction, power or authority in a high court may be amended from time to time by His Majesty by further letters patent.] (2) The high courts have not and may not exercise any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force."
27.3. Section 108 :
"108. Exercise of jurisdictiion by single judges or division courts.- (1) Each high court may by its own rules provide, as it thinks fit, for the exercise, by one or more judges, or by division courts constituted by two or more judges, of the High Court, of the original and appellate jurisdiction vested in the Court.
(2) The Chief Justice of each High Court shall determine what judge in each case is to sit alone, and what judges of the court, whether with or without the Chief Justice, are to constitute the several division courts."
28. While Section 101 refers to constitution of High Courts, Section 106 of the said Act provides, inter alia, that several High Courts are courts of record and have all such powers and authority over or in relation to the administration of justice, including power to make rules for regulating the practice of the court, as are vested in them by Letters Patent and, subject to the provisions of any such Letters Patent all such jurisdiction, powers and authority as are vested in those courts respectively at the commencement of the said Act. As per sub-section (1) of Section 108 of the said Act, each High Court may, by its own rules, provide, as it thinks fit, for the exercise, by one or more judges or by division courts constituted by two or more judges of the High Court of the original and appellate jurisdiction vested in the Court. Sub-section (2) of Section 108 lays down that the Chief Justice of each High Court shall determine what judge in each case is to sit alone, and what judges of the court, whether with or without the Chief Justice, are to constitute the several division courts.
29. The Government of India Act, 1915, was repealed and re-enacted with modifications by the Government of India Act,1935. In the latter Act, Sections 220 and 223 are relevant, which are as follows :
29.1. Section 220 :
"220. Constitution of High Courts.- (1) Every High Court shall be a court of record and shall consist of a chief justice and such other judges as His Majesty may from time to time deem it necessary to appoint :
xxxx (2)- (4) xxxx"
29.2. Section 223 :
"223. Jurisdiction of existing High Courts.- Subject to the provisions of this Part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, 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 Part III of this Act."
30. Here too, Section 220 refers to Constitution of High Courts and Section 223 deals with jurisdiction of existing High Courts. Section 223 states that subject to the provisions of this Part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, 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 Part III of this Act.
31. The Government of India Act,1935, was repealed by the Constitution of India in the year 1950. Article 225 of the Constitution provides for jurisdiction of existing High Courts. It reads that 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.
32. A High Court Judge's power to hear specified class of cases is derived only from the allocation of business by the Chief Justice. A case not covered by such allocation cannot be heard by a judge sitting singly or in Division Bench. The power of Chief Justice to allocate business is not only derived from Section 108 (2) of the Government of India Act,1915, which still subsists by virtue of Section 223 of the Government of India Act,1935, and Article 225 of the Constitution, but is also inherent in the Chief Justice. Thus, the Chief Justice is the master of the roster. He has full power, authority and jurisdiction in the matter of allocation of business of the High Court, which inheres in him in the very nature of things.
Prerogative power of the Chief Justice :
33. Article 225 of the Constitution of India contemplates that by virtue of powers conferred on the 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 the Constitution.
34. Constitution of a Bench is an administrative function to be performed by the Chief Justice of the High Court and it is his prerogative to distribute the business of the High Court, both judicial and administrative, as he is the master of roster and, with such prerogative, he alone can constitute benches of the Court and allocate the cases to the benches so constituted. 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, thereby making of the roster and placement of cases before different benches indisputably to be the prerogative of the Chief Justice. The Chief Justice has inherent power to allocate the business of the High Court and to constitute the benches for the purpose. Even on account of exceptional circumstances or to meet the extraordinary situation, it is for the Chief Justice to decide and allot the work by constituting a bench. It is also pertinent to note that even if a particular case is to be taken up by a particular bench and for constitution of the bench for that purpose, the Chief Justice alone can make the arrangements or re-arrangements of the benches and assign the work to that bench for determination. The arrangement of sittings and allotment of work are part of the domestic administration of High Court and the Chief Justice. When such a prerogative is vested with the Chief Justice and having represented to the Chief Justice, on filing a Public Interest Litigation by making the Registrar General as the respondent, praying for a direction to constitute a Special Bench, any issuance of such a direction would amount to issuing a direction to the Chief Justice and such a judicial authority is not available to the Court.
Public Interest Litigation :
35. Coming to the point of Public Interest Litigation, it is to be stated that Public Interest Litigation or PIL is a litigation for the protection of pubic interest. Articles 32 and 226 of the Constitution of India contain a tool which directly joints the public with judiciary. PIL may be introduced in a court of law by the Court itself suo motu, rather than the aggrieved party or any other third party. For the exercise of the court's jurisdiction, it is unnecessary for the victim of the violation of his or her rights to personally approach the court. In PIL, the right to file suit is given to a member of the public by the courts through judicial activism. Public Interest Litigation should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. It should not also be a Publicity Interest Litigation.
36. PIL is not a pill or panacea for all wrongs. It is essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public-spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the court for relief. There have been, in recent times, increasing instances of abuse of PIL. Therefore, there is a need to re-emphasize the parameters within which PIL can be resorted to by a petitioner and entertained by the Court.
37. In the case on hand, the petitioner, having a concern for the prisoners, who are detained under the preventive detention laws, approached this Court by way of this Writ Petition under the style of PIL, praying for constituting a Special Bench for disposal of Act 14 cases. Such an approach, though having a public concern, particularly the rights of the prisoners, can be heeded to, only in the manner known to law i.e., by the authority empowered thereto, who is none other than the Hon'ble Chief Justice.
Conclusions :
38. Given the above historical background and the power derived by the Chief Justice as the administrative head in relation to the administration of justice in the court, the power to constitute the benches and regulate the sitting arrangements of the court is the absolute prerogative of the Chief Justice. Besides, making of roster and placing of cases before different Benches of the High Court are unquestionably the prerogatives of the Chief Justice of that Court. In the High Courts, which have Principal and other Benches, there is a practice and, as per rules, if framed, that the seniormost Judge at the Benches, other than the Principal Bench, is normally permitted to exercise powers of the Chief Justice, as may be delegated to the seniormost Judge. In the absence of the Chief Justice, the seniormost Judge would pass directions in regard to the roster of the Judges and listing of cases. Primarily, it is the exclusive prerogative of the Chief Justice and does not admit any ambiguity or doubt in this regard.
39. The Hon'ble Chief Justice has 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 and 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. Also, 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 Chief Justice.
40. In the instant case, it appears, the petitioner, a Trust, having noticed what are all the happenings inside the prison and taking into account the pendency of the particular class of cases, namely, Act 14, construing that the said cases are pending for more than a considerable time, preferred a representation to the Hon'ble Acting Chief Justice with a request to constitute a Special Bench for the purpose. Assuming that public interest is involved therein, the said public interest can be redressed only through proper mechanism as per the law established. Rule of Law prescribes that the Chief Justice is the authority to take a decision in the matter.
41. In the given case, in order that public interest is to be achieived, the same can be done only in the manner as contemplated under the authority of law i.e., by making a proper representation to the Hon'ble Chief Justice, and waiting for a decision to be taken thereon by him, but not otherwise. The actions and inactions of the Chief Justice shall not come under the purview of judicial review, in view of the settled legal principles, as enunciated by the Apex Court, and relied upon by both the parties. The Judges, particularly the Judges of Higher Judiciary in India, are Constitutional Functionaries and not government servants or government officials, as has been time and again laid down by a number of decisions of the Apex Court, and they are not 'persons' or 'authorities' or 'government', against whom writs can be issued under Article 226 of the Constitution of India. (emphasis supplied)
42. Articles 225 and 229 of the Constitution of India have conferred prerogatives on the Chief Justice as regards the administration of the High Court. Such power is unquestionable and cannot be called in question either under judicial review or in a Public Interest Litigation, to direct the Chief Justice or the Acting Chief Justice to constitute a Special Bench. Therefore, we are of the considered opinion that no judicial review is available to the petitioner to file this PIL for a direction to the Hon'ble Chief Justice of this Court, as the Hon'ble Chief Justice alone is the exclusive authority to take a decision on the need for constitution of a Special Bench, and not this Court. Under the circumstances, even on public interest, it is for the Hon'ble Chief Justice to decide about and the grievance of the petitioner cannot be redressed through any other recourse, such as this Public Interest Litigation, than what is mandated. As such, the Writ Petition cannot be entertained and the same is to be rejected.
43. While upholding the above legal position, we would like to observe, that, in view of the settled legal principles, any public interest can be achieved only in the manner known to law, but not by any other mechanism. In the present case, while it is the stand of the petitioner that there is a huge pendency of cases and he represented to the Acting Chief Justice to constitute a Special Bench thereto, the stand of the respondent/Registrar General would indicate, that, even in the normal course of hearing, the Hon'ble Division Bench disposes of the Habeas Corpus Petitions, commensurate to the cases filed everyday and, thereby, the pendency has been reduced drastically and that the same was achieved in the absence of any Special Bench for the purpose. That being the factual position, if the petitioner still feels that there is a compelling necessity to constitute a Special Bench, it is open for him to make a representation to the Hon'ble Chief Justice to that effect, in which event, it is always in the exclusive domain of the Hon'ble Chief Justice to take a decision thereon.
44. Registry is directed to place a copy of this order before the Hon'ble Chief Justice, for favour of information.
45. Writ Petition is dismissed accordingly. No costs.
Index : Yes (V.D.P.,J.) (G.C.,J.)
Internet : Yes 11-08-2014
abe/dixit
To
The Registrar General
High Court of Judicature at Madras,
Chennai -600 104.
V.DHANAPALAN,J.
And
G.CHOCKALINGAM,J.
abe/dixit
Order in
W.P.No.14893 of 2014
Dated: 11.08.2014