Case: T. Fenn Walter  Vs. Union Of India

people. Indispensable to that faith is the independence of the judiciary. Any independent and impartial judiciary supplies the reason for the judicial institution; it also gives character and content to the constitutional milieu. ....In the fashioning of the provisions relating to the judiciary, the greatest importance was attached to securing the independence of the Judges, and throughout the Constituent Assembly Debates the most vigorous emphasis was laid on that principle .... The Framers of the Constitution took great pains to ensure that an even better and more effective judicial structure was incorporated in the Constitution, one which would meet the highest expectations of judicial independence." (10) Hon. Bernard L. Shientag in his Benjamin N. Cardozo Memorial Lectures, said : "There can be no Government of law without a fearless, independent judiciary. The independence of the Judge is the chief of all the cardinal judicial virtues. He must be entirely free from all external influence and subservient only to his own conscience." (11) There are ever so many Statutes enacted by the Parliament which provide for a sitting Judge of the High Court to be appointed either as the President, Chairman, or Vice-Chairman of any Tribunal or Commission. Under the Consumer Protection Act, 1986, under Section 16-A, a person who is or has been a Judge of a High Court is eligible for being appointed as the President or Member of the State Consumer Disputes Redressal Forum. The Administrative Tribunals Act, 1985; Railways Claims Tribunal Act, 1987; Special Courts (Trial of Offences Relating to Transcations in Securities) Act, 1992; National Commission for Backward Class Act, 1993 are some of the enactments which contain similar provisions where the Chairman, Member or President shall be either a sitting or a retired Judge of a High Court. Therefore, it cannot be said that a sitting Judge of a High Court shall neither be appointed to any other post nor shall be assigned any other judicial or quasi-judicial work. But, invariably, in all cases, the Chief Justice of the concerned High Court would be consulted in case the appointment is sought of a sitting Judge. Normally, a Judge who is to retire from service shortly may be desirous of accepting any other assignment either as a Chairman, Vice-Chairman or Member of any Commission or Tribunal. But if a sitting Judge is appointed to a regular post of Chairman, Vice-Chairman or Member of a Tribunal and the decision of that authority is subjected to judicial review of the High Court, it may not be an ideal situation. (12) Under the Constitution of India, security of judicial tenure has been provided to the Judges of the superior Courts and they could be removed only as per the proviso prescribed under Article 124(4) of the Constitution on account of proved misbehaviour or incapacity. Sometimes, the sitting Judge who is appointed to the post of Chairman, Vice-Chairman of any Tribunal or Commission would be liable to be removed by the appointing authority. This also is not desirable in view of the constitutional position being occupied by the Judge. (13) Quite often sitting Judges are appointed as Inquiry Commissions. Generally it may not create any difficulty, if the inquiry itself can be conducted without prejudice to other judicial work as a Judge of the superior Court. However, the appointment of Judges to head or chair a Commission of Inquiry or to perform other non-judicial work would create unnecessary burden on the Judges and it would affect the administration of justice. The work of these Commissions takes considerable time and there are several instances where the work of the Commission continued for years. If sitting Judge is appointed, considerable time is lost and the Judge would not be in a position to attend to his regular judicial work. In view of the mounting arrears of cases in superior Courts, it would be difficult to lend services of a Judge for such Commission work. Moreover, the report of the Commission of Inquiry is often stated to have only recommendatory value and the opinions expressed therein are not binding on the Government. Quite often the reports of the Commission are ignored and no follow-up actions are being taken by the Govt. In some matters, when political issues are also involved, even impartiality and objectivity of the Court may sometimes be questioned due to some extraneous and oblique motives. The public image and prestige of the Court as guardian of the Constitution and rule of law has to be maintained. It is desirable that the Judges are not subjected to unwanted criticism on account of appointment as the Inquiry Commission. The image and the authority of the Court, which is of utmost importance, has to be upheld. Justice Harlan F. Stone in a letter as far back as in 1953 wrote : "It has been a long tradition of our Court that its members do not serve on committees or perform other services not having a direct relationship to the work of the Court". (Harvard Law Review (Vol. 87 1953-54)). Keeping in view all these aspects, the appointment of a sitting Judge as a Commission of Inquiry has to be made only on rare occasions if it becomes necessary for the paramount national interest of the country. (14) When a sitting Judge is appointed to another post, which is whole-time and if the decision taken in that capacity is subject to judicial review, it may not be in the best interests of the independence of the judiciary. Sometimes, the additional post held by the Judge may not be of equivalent status or may be under different situations, which may even spell out a master and servant relationship between the Judge and the appointing authority. Even though this may not create any conflict of duty or interest, in these days of multifarious litigation, it is always desirable for the Judge of the superior judiciary to keep away from areas of controversy so that the public confidence in our system is not hampered in any way.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds](11) There are ever so many Statutes enacted by the Parliament which provide for a sitting Judge of the High Court to be appointed either as the President, Chairman, or Vice-Chairman of any Tribunal or Commission. Under the Consumer Protection Act, 1986, under Section 16-A, a person who is or has been a Judge of a High Court is eligible for being appointed as the President or Member of the State Consumer Disputes Redressal Forum. The Administrative Tribunals Act, 1985; Railways Claims Tribunal Act, 1987; Special Courts (Trial of Offences Relating to Transcations in Securities) Act, 1992; National Commission for Backward Class Act, 1993 are some of the enactments which contain similar provisions where the Chairman, Member or President shall be either a sitting or a retired Judge of a High Court. Therefore, it cannot be said that a sitting Judge of a High Court shall neither be appointed to any other post nor shall be assigned any other judicial or quasi-judicial work. But, invariably, in all cases, the Chief Justice of the concerned High Court would be consulted in case the appointment is sought of a sitting Judge. Normally, a Judge who is to retire from service shortly may be desirous of accepting any other assignment either as a Chairman, Vice-Chairman or Member of any Commission or Tribunal. But if a sitting Judge is appointed to a regular post of Chairman, Vice-Chairman or Member of a Tribunal and the decision of that authority is subjected to judicial review of the High Court, it may not be an ideal situation(12) Under the Constitution of India, security of judicial tenure has been provided to the Judges of the superior Courts and they could be removed only as per the proviso prescribed under Article 124(4) of the Constitution on account of proved misbehaviour or incapacity. Sometimes, the sitting Judge who is appointed to the post of Chairman, Vice-Chairman of any Tribunal or Commission would be liable to be removed by the appointing authority. This also is not desirable in view of the constitutional position being occupied by the Judge(13) Quite often sitting Judges are appointed as Inquiry Commissions. Generally it may not create any difficulty, if the inquiry itself can be conducted without prejudice to other judicial work as a Judge of the superior Court. However, the appointment of Judges to head or chair a Commission of Inquiry or to perform other non-judicial work would create unnecessary burden on the Judges and it would affect the administration of justice. The work of these Commissions takes considerable time and there are several instances where the work of the Commission continued for years. If sitting Judge is appointed, considerable time is lost and the Judge would not be in a position to attend to his regular judicial work. In view of the mounting arrears of cases in superior Courts, it would be difficult to lend services of a Judge for such Commission work. Moreover, the report of the Commission of Inquiry is often stated to have only recommendatory value and the opinions expressed therein are not binding on the Government. Quite often the reports of the Commission are ignored and no follow-up actions are being taken by the Govt(14) When a sitting Judge is appointed to another post, which ise and if the decision taken in that capacity is subject to judicial review, it may not be in the best interests of the independence of the judiciary. Sometimes, the additional post held by the Judge may not be of equivalent status or may be under different situations, which may even spell out a master and servant relationship between the Judge and the appointing authority. Even though this may not create any conflict of duty or interest, in these days of multifarious litigation, it is always desirable for the Judge of the superior judiciary to keep away from areas of controversy so that the public confidence in our system is not hampered in any way.