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`HC judges as Inquiry Commission should be rare'

By J. Venkatesan

NEW DELHI July 15. The Supreme Court has held that sitting Judges of the High Court could not be appointed to hold a post under any other authority as "it may not be in the best interests of the independence of the judiciary''.

A three-Judge Bench comprising the Chief Justice B.N. Kirpal, Justice Y.K. Sabharwal and Justice K.G. Balakrishnan, however, said the appointment of a sitting Judge as a commission of inquiry under the Commissions of Inquiry Act might not be objectionable, but it had to be made only on rare occasions "if it becomes necessary for the paramount national interest of the country''.

The Bench was disposing of a special leave petition against a judgment of the Madras High Court rejecting a petition filed by a group of advocates, T. Fenn Walter and others, challenging the appointment of Justice E. Padmanabhan, a sitting Judge of the High Court, as President of the State Consumer Disputes Redressal Commission, Pondicherry. (The Judge resigned that post during the pendency of the petition in the High Court).

Speaking for the Bench, Justice Balakrishnan said, "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''.

The Bench noted that quite often sitting Judges were appointed as Inquiry Commissions and the work of these Commissions took considerable time and there were several instances where the work of the Commission continued for years.

The Bench also observed, "In view of the mounting arrears of cases in superior courts, it would be difficult to lend the 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 Government.''

The Bench further said, "in some matter, 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 the guardian of the Constitution and rule of law has to be maintained. It is desirable that judges are not subjected to unwanted criticism on account of appointment as the Inquiry Commission''.

"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,'' the Bench said.

"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,'' the Bench said.

The Bench laid down the following guidelines where a sitting judge could be appointed to other posts:

Where the judicial office had to be filled up by a sitting Judge to fulfil the requirement of law, example, Article 262 of the Constitution, which provides for adjudication of any dispute with respect to the use, distribution or control of water or any inter-State river or river-valley, read with Inter State Water Disputes Act, such an appointment might not be objectionable.

Where expertise and experience of a sitting judge was required to discharge the functions, then he could be appointed, for example, as a Member of Finance or Law Commission.

"Appointment of a sitting Judge to a Tribunal is not desirable where the adjudicating members are composed of other members who are not Judges or qualified to be appointed as Judges, such as bureaucrats, revenue officials etc.''

"When the Chief Justice of a High Court is consulted for appointment of a sitting Judge as Member, Chairman, Vice-Chairman, President of any court, commission or tribunal and it is a whole time post, the Chief Justice shall bear in mind the relevant circumstances and shall not compromise the dignity of the office of the sitting Judge and shall strive to preserve the independence of judiciary,'' the Bench observed.

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