Holding

A sitting High Court judge may be appointed to a commission or tribunal provided the appointment is made with the Chief Justice’s consultation, does not create a master‑servant relationship, and the judge refrains from exercising judicial functions while holding a whole‑time post, thereby preserving judicial independence.

Summary

The case examined whether a sitting High Court judge appointed as President of a State Consumer Disputes Redressal Commission could continue to function as a judge. A group of advocates challenged the appointment, arguing it created a master‑servant relationship and threatened judicial independence, while the government contended that statutes permit such appointments and that judges may perform additional functions. The Supreme Court noted numerous statutes that expressly allow sitting judges to hold positions in commissions and tribunals, but emphasized that the appointment must be made with the consultation of the Chief Justice and must not compromise the judge’s security of tenure under Articles 124(4) and 217 of the Constitution. The Court formulated guidelines limiting whole‑time appointments, prohibiting concurrent judicial duties where decisions are subject to review, and requiring that judges relinquish their judicial office if they accept a full‑time post. Ultimately, the Court held that such appointments are valid if the guidelines are observed, and dismissed the appeal.

Issues considered

Whether the appointment of a sitting High Court judge to a full‑time post in a commission or tribunal deprives him of his status as a judge.
Whether such appointment violates the constitutional guarantee of judicial independence and security of tenure under Articles 124(4) and 217.
Whether statutes like the Consumer Protection Act, 1986 authorize the appointment of sitting judges to commissions.
What guidelines should govern the appointment of sitting judges to commissions or tribunals to preserve judicial independence.

Legislation cited

Subjects

judicial independenceappointment of judgescommissionstribunalshigh court judgesconstitutional lawseparation of powerssecurity of tenureguidelines

Judgment

A T. FENN WALTER AND ORS.
v.
UNION OF INDIA AND ORS.

JULY 12, 2002

8 [8.N. KIRPAL CJ., Y.K. SABHARWAL AND K.G. BALAKRISHNAN, JJ.]

Superior judiciary-Sitting Judge-Appointment to Commissions and
Tribunals-Validity of-Held, such appointment valid-But in view of
C constitutional position of such Judge and in the interest of independence of
judiciary, guidelines formulated as to manner of appointment to Commission
or Tribunal~onstitution of India, 1950-Artic/es 124 and 217.

The question for consideration in this case was whether sitting Judges
of High Court appointed to various Commissions and Tribunals can still
D discharge the duties as sitting Judges.

The issue arose when a sitting Judge of High Court was appointed
as President of State Consumer Disputes Redressal Commission, a group
of advocates filed a writ petition alleging that after such appointment the
sitting Judge ceased to be a Judge. The writ petition was dismissed by the·
E High Court.

In appeal to this Court, appellant contended that Judge of a High
Court occupies a high constitutional post and therefore he should not be
expected to hold a post under any other authority; that in the instant case
a sitting Judge was appointed to a full time post under the Government
f and on such appointment there came into existence a relationship of master
and servant between the Government and the Judge and under Rule 6(5)
of the Rules framed under the Consumer Protection Act, 1986, that
Government can remove the President for any of the reasons mentioned
therein and thus these provisions would make serious inroads into the
G independence of the judiciary; that members and the Chairman of the
Commission cannot claim to be equal to a Judge of the High Court and
that superior courts are vested with the power of judicial review to
determine the Segality of executive action and the validity of the legislation
passed by the Legislature and that being the solemn duty of the judiciary,
the appointment of High Court Judges in various independent posts may
H 134
T. FENN WALTER v. U.O.I. 135
create embarrassing situation. A
Respondent contended that the situation contemplates that a Judge
of a High Court may perform such other functions as he may be assigned
at the request of the President; and that it may not be practicable to
provide an inflexible guideline that a sitting Judge should never hold
another whole time office;. and that all possible contingencies which may B
occur in future cannot be anticipated.

Disposing of the appeal, the Court

HELD: I. There are ever so many Statutes enacted by the Parliament
which provide for a sitting Judge of the High Court to be appointed either C
as the President, Chairman, or Vice Chairman of any Tribunal or
Commission. Under the Consumer Protection Act, 1986, under Section
16A, 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; D
Railway Claims Tribunal Act, 1987; Special Courts (Trial of Offences
relating to Transactions 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 sitting Judge of a High Court shall neither be appointed to any E
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 F
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. [144-E-H; 145-Af

2. Under the Constitution of India, security of judicial tenure has G
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 H
136 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A position being occupied by the Judge. (145-B]
3. 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
B 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
C 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
D and no follow-up actions are being taken by the Government. 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
E 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.
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. (145-C-F; 145-H; 146-A]
F 4. 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 addition~! post held by the Judge may not be of equivalent
status or may be under different situations, which may even spell out a
G mastert 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 multif::rious 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. (146-A-C]

H 5. Some broad guidelines are formulated as to the manner in which
T. FENN WALTER v. U.0.1. 137
the appointment of a sitting Judge of a High Court to a Commission should A
be deal with.

(1) Appointment of a sitting Judge to the following offices may
not be objectionable:
(a) As a commission of inquiry under the Commissions of Inquiry
B
Act.
(b) Judicial office which is of such a high character and where it
has to be filled up by a sitting Judge to fulfill the requirement ·~

of law, e.g. under Article 262 of the Constitution of India
which provides for adjudication of any dispute with respect
to the use, distribution or control of water or any inter-State
c
river or river-valley, read with Inter State Water Disputes
Act, 1956.
• (c) Where expertise and experience of a sitting Judge is required
to discharge the functions, a sitting Judge may be appointed,
for example, as a Member of the Finance Commission or
D
Law Commission.
(2) Appointment of 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.
E
(3) Appointment of sitting Judge to a Judicial Tribunal is not
desirable where the statute or the rules .and regulations framed
therein contemplate provisions for removal from such office or
other disciplinary action by any authority.
F
(4) When a sitting Judge is appointed to a post or Tribunal, he
shall be amenable to the disciplinary jurisdiction only in the
manner provided for in Article 124(4) of the Constitution oflndia
if he is a Judge of the Supreme Court or in the manner provided
for in proviso (b) to Article 217(1) read with Article 124(4) of the
G
Constitution of India if he is a Judge of a High Court.

(S) Where the post may not be a whole time post but the nature
of duties are such that his order as a Tribunal or Commission
would be subjected to the supervisory jurisdiction of the High
Court under Articles 226, 227, a sitting Judge of the High Court H
138 SUPREME COURT REPORTS (2002] SUPP. I S.C.R.

A may not be appointed to such post, but if the sitting Judge
concerned has only a short period to retire from service, he may
be appointed, but after accepting the full time post, he shall not
sit as a Judge and discharge duties and functions (both judicial
and administrative) as a sitting Judge of High Court, even though
he may not demit office consequent on his appointment to a full-
B time post.

(6) When the Chief Justice of a High Court is consulted for
appointment of a sitting Judge as Member, Chairman, Vice
Chairman or President of any Court, Commission or Tribunal
and it is a whole time post, the Chief Justice shall bear in mind
c 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.

(7) When a sitting Judge who has only a short period to retire
from service is appointed to a post, he shall express his willingness
D to relinquish the remaining tenure as a Judge and then only his
service shall be made available for such post. [146-C-H; 147-A-E)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3993 of
2002.
E From the Judgment and Order dated 12. I .2001 of the Madras High
Court in W.P. No. 7842 of 2000.

F.S. Nariman, Subhash C. Sharma, Ms. R. Vaigai, S. Vallinayagam
and S. Muralidhar for the Appellants.
F K. Parasaran and R. Mohan, V. Balachandran, V.G. Pragasam, V.
Balaji, P.N. Ramalingam, S. Wasim A. Quadri and Ms. Anil Katiyar for
the Respondent.

The Judgment of the Court was delivered by
G K.G. BALAKRISHNAN, J. Leave granted.

A group of advocates practicing in the High Court of Madras filed a
writ petition alleging that a sitting Judge of that High Court ceased to be a
Judge as he was appointed as President of the State Consumer Disputes
H Redressal Commission, Pondicherry, (for short 'the State Commission') and
T. FENN WALTER v. U.0.1. [K.G. BALAKRISHNAN, J.) 139
prayed for an appropriate writ or other directions. The writ petition was A
dismissed by a Division Bench of the Madras High Court and aggrieved by
the same, the present appeal is filed.

The post of the President. of the State Consumer Disputes Redressal
Commission at Pondicherry wa~ being manned by a retired High Court Judge.
After the completion of his term of office, nobody else was willing to be B
considered for appointment as President of the State Commission. Pondicherry
being a small Union Territory with limited financial resources could l!Ot
afford to have a full-time President for the State Commission. The post was
lying vacant for a considerable period. The correspondence produced in this
case would show that a Judge of the Madras High Court, who was the C
administrative Judge for Pondicherry, was requested by the then Chief Justice
of the High Court to take up the post of President of the State Commission
at Pondicherry. As the Hon'ble Judge was willing to be the President of the
State Commission, Pondicherry, his name was recommended by the Chief
Justice and, the High Court, by D.O. letter dated 25.11.1998, informed the
Pondicherry Govt. to initiate the process of appointment. It was pointed out D
that Section 2(1) (c )(i) of the High Court Judges (Conditions of Service) Act,
1954 necessitates the concurrence of the President oflndia in the appointment
of a sitting Judge of the High Court. The Govt. of Pondicherry on 21.5.1999
issued a Notification appointing the sitting Judge of the Madras High Court
as President of the State Commission. A communication also was issued E
from the Ministry of Law, Justice & Company Affairs, that the President of
India was pleased to request the Judge to function as President under the
Consumer Protection Act and that the time spent by him in the performance
of the above functions would be counted as "Actual Service" within the
meaning of Para l l(b)(i) of Part-D of the Second Schedule lo the Constitution
of India read with Section 1(1) (c )(i) of the High Court Judges (Salaries & F
Conditions of Service) Act, 1954. While the Judge was continuing as President
of the State Commission, the present writ petition was filed and the Judge
resigned from the post of President of the State Commission. We are no
longer concerned with the reliefs sought for in the writ petition; however, the
matter is of some constitutional importance, as sitting Judges are quite often G
appointed to various posts and Tribunals and whether they can still discharge
the duties as sitting Judges is a vexed question.

We heard Shri F.S. Nariman, learned Senior Counsel for the appellants
and Shri K. Parasaran, learned Senior Counsel who appeared for the
respondent. Learned Counsel for the appellants submitted that the Judge of H
140 SUPREME COURT REPORTS [2002] SUPP. l S.C.R.

A a High Court occupies a high constitutional post and therefore, he shall not
be expected to hold a post under any other authority. It was pointed out that
in the instant case, a sitting Judge was appointed to a full-time post under the
Govt. of Pondicherry and on such appointment, there came into existence a
relationship of master and servant between the Pondicherry Govt. and the
B Judge who held the post of Chainnan. It was argued that the State Commission
is a regular statutory body and the Chairman of the State Commission was
holding a post under the Govt. and that under Rule 6 (S)of the Rules framed
under the Consumer Protection Act, 1986, the Govt. can remove the President
for any of the reasons mentioned therein. The counsel for the appellants
contended that these provisions will make serious inroads into the
C independence of the judiciary. It was also contended that members and the
Chairman of the Commission cannot claim to be equal to a Judge of the High
Court and that the superior courts are vested with the power of judicial
review to determine the legality of Executive action and the validity of the
legislation passed by the Legislature, and that being the solemn duty of the
judiciary under the Constitution, the appointment of High Court Judges in
D various independent posts may create embarrassing situation.
Shri K. Parasaran, learned Senior Counsel for the respondent, on the
other hand, contended that the Constitution contemplates that a Judge of a
High Court may perform such other functions as he may be assigned at the
E request of the President, and that a practice has developed of sitting Judges
of the High Courts being· requested to perform other functions. It was submitted
that there were series of instances in the past fifty years where the Judges
of the superior court were being assigned various other assignments and that
it has now become a part of a well recognized convention. Our attention was
drawn to a series of Parliamentary enactments in which a provision has been
F made that the post of Chairman of the Tribunal/Commission can be filled up
either by appointing a sitting Judge or a retired Judge or a person qualified
to be a Judge of the High Court. Reference in this regard was made to
Consumer Protection Act, 1986; Inter-State Water Disputes Act, 1956;
Commission of Enquiry Act, 1952; Administrative Tribunals Act, l 985;
G Railway Claims Tribunal Act, 1987; Special Courts (Trial of Offences relating
to Transactions in Securities) Act, 1992; Protection of Human Rights Act,
1993. Shri Parasaran, further submitted that the office of a Judge of the
Supreme Court or a Judge of a High Court is such a high and majestic
constitutional office that by accepting other offices which are whole-time
offices they should not be allowed to derogate from the status and dignity of
H such an office. It was pointed out that there are functions like being a Member
T. FENN WALTER v. U.0.1. [K.G. BALAKRISHNAN, J.) 141

of a Commission of Inquiry under the Commissions of Inquiry Act and A
holding office as a member of other commissions may have to be performed
by sitting Judges. It was submitted that it may not be practicable to provide
an inflexible guideline that a sitting Judge should never hold another whole-
time office and all possible contingencies which may occur in future cannot
be anticipated.
B
While considering Article 103 of the Draft Constitution, one of the
Hon. Members of the Constituent Assembly suggested that there should be
a new Article, namely, Article I 03A to the effect that a person who is holding
or has held office of a Judge of the Supreme Court shall not be eligible for
appointment to any office of emoluments under the Govt. of India or State C
other than that of the Chief Justice of India or the Chief Justice of a Hijlh
Court. Various opinions were expressed by the Members of the Constituent
Assembly.

Replying to the various suggestions, Dr. B.R. Ambedkar stated as
follows: D
"I understand to be the idea underlying this particular amendment.
For the purpose of understanding the main idea underlying this
amendment, I think we have to take up three different cases. One
case is the case of a Judge of the Supreme Court who has been
appointed to an executive office with no right of reversion to the E
Supreme Court. That is one case. The second case is the appointment
of a Supreme Court Judge after he has held that post to an executive
office of a non-judicial character. The third case is the case of a
executive office of a Supreme Court Judge being given or assigned
duties of a non-judicial character with the right to revert to the Supreme F
Court. I understand that - my friend Dr. Sen may correct me if I am
wrong - this amendment refers to the third proposition, viz., the
assignment of a Supreme Court Judge to non-judicial duties for a
short period with the right for him to revert to the Supreme Court.

With regard to the first case that I mentioned, viz., the appointment G
of a Supreme Court Judge to an executive office provided the Supreme
Court Judge resigns his post as a Judge of the Supreme Court, I do
not see any objection at all, because he goes out of the Supreme
Court altogether.

With regard to the second case, viz., the assignment of duties to a H
142 SUPREME COURT REPORTS (2002) SUPP. I S.C.R.

A Supreme Court Judge who has retired, we have just now disposed of
it. There oughno be no limitation at all.

With regard to the third case, I think it is a point which requires
consideration. We have had two cases in this country. One was the
case which occurred during the war when a Judge of ~he Federal
B Court was sent round by the then Government of India on diplomatic
missions. We have also had during the regime of this Government the
case where the Chief Justice or a Judge I forget now - on one of the
High Courts, was sent out on a diplomatic missi.on. On both occasions
there was some very strong criticism of such action. My Friend, Mr.
Chimanlal Setalvad, came out with an article in the Times of India
c criticizing the action of the Government. ·Personally I share those
sentiments."

In Alok Kumar Roy v. Dr. S.N. Sarma and Anr. [1968) 1 SCR 813, a
sitting Judge of the High Court was appointed to head a Commission of
D Inquiry under the Commission of Inquiry Act, 1952. That particular Judge
was nominated as the Vacation Judge of the High Court . While continuing
as the head of the Commission under the Commission of Inquiry Act, the
learned Judge entertained a writ petition and passed certain interim order.That
interim order was challenged before the Division Bench and the Division
Bench headed by the Chief Justice of the High Court held that the Vacation
E Judge, while performing the duties of the Commission of Inquiry could not
also perform the duties of a Judge of the High Court. The judgment of the
Division Bench was challenged before this Court and Wanchoo, C.J., held :

"Often times, Judges of High Courts are appointed under the
Commission of Enquiry Act to head Commissions for various purposes.
F These Commissions are temporary affairs and many a time their sittings
are not continuous. A Judge of the High Court when he is l[lppointed
to head a Commission of this kind does not demit his office as a
Judge and when the Commission is not actually sitting he is entitled
to sit as a Judge of the High Court. It is only where a Judge of the
High Court is appointed to another post, which is a whole time post
G
that it may be said that on such appointment he can no longer work
as a Judge of the High Court for the time being, though even in such
a case, when the work is over, he reverts as a Judge of the High
Court without fresh appointment. " [Emphasis supplied]

H The counsel on either side emphasized the importance of the
T. FENN WALTER v. U.0.1. [K.G. BALAKRISHNAN, J.) 143

independence of the judiciary and it was submitted that the appointment of A
sitting Judges as Commission/Tribunal shall not, in any way, affect the
independence of the judiciary.

In a decision of this Court in Union of India and Ors. v. Pratibha
Bonnerjea and Anr., [1995] 6 SCC 765, Ahmadi, C.J., observed:
B
"Independence and impartiality are the two basic attributes essential
for a proper discharge of judicial functions. A Judge of a High Court
is, therefore, required to discharge his duties consistently with the
conscience of the Constitution and the laws and according to the
dictates of his ow~ conscience and he is not expected to take orders
from anyone. Since a substantial volume of litigation involves C
government interest, he is required to decide matters involving
government interest day in and day out. He has to decide such cases
independently and impartially without in any manner being influenced
by the fact that the Government is a litigant before him. In order to
preserve his independence his salary is specified in the Second D
Schedule, vide Article 22 l of the Constitution. He, therefore, belongs
to the third organ of the State which is independent of the other two
organs, the Executive and the Legislature. It is, therefore, plain that
a person belonging to the judicial wing of the State can never be
subordinate to the other two wings of the State. A Judge of the High
Court, therefore, occupies a unique position under the Constitution. E
He would not be able to discharge his duty without fear or favour,
affection or ill will, unless he is totally independent of the Executive,
which he would not be if he is regarded as a government servant. He
is clearly a holder of a constitutional office and is able to function
independently and impartially because he is not a government servant ·p
and does not take orders from anyone."

In the decision rendered by a nine Judge Bench in Supreme Court
Advocates-on-Record Association and Ors. v. Union of India, [1993] 4 SCC
44 l, this Court reiterated the position that by various decisions of this Court,
it has been made abundantly clear that the independence of judiciary is a part G
of the basic structure of the Constitution to secure the rule of law essential
for the preservation of the democratic system. In an earlier decision rendered
by this Court in S.P. Gupta v. Union of India, (1981] Supp. SCC 87, Pathak,
J. (as he then was) observed in the following terms :

" .... While the administration of justice draws its legal sanction from H
144 SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A the Constitution, its credibility rests in the faith of the 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.

B .... .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
c which would meet the highest expectations of judicial independence."

Hon. Bernard L. Shientag in his Benjamin N. Cardozo Memorial
Lectures, said :

"There can be no government of law without a fearless, independent
D judiciary. The independence of the judge is the chiefof all the cardinal
judici::tl virtues. He must be entirely free from all external influence
and subservient only to his own conscience."

There are ever so many Statutes enacted by the Parliament which provide
E 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 l 6A, 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; Railway Claims Tribunal Act, 1987;
F Special Courts (Trial of Offences relating to Transactions 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
G 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
H Judge is appointed to a regular post of Chairman, Vice Chairman or Member
T. FENNWALTERv. U.0.1. [K.G.BALAKRISHNAN,J.) 145
of a Tribunal and the decision of that authority is subjected to judicial review A
of the High Court, it may not be an ideal situation.

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 B
who is appointed to the post of Chairman, Vice Chairman ofany 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.
----<
1 Quite often sitting Judges are appointed as Inquiry Commissions. C
Generally it may not create any difficulty, ifthe 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 D
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 E
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 F

l 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 G
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 H
146 SUPREME COURT REPORTS [2002] SUPP. l S.C.R.

A interest of the (;O\lt'llty.

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
·B 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
C ls not hampered in any way.

Having regard .to various constitutional issues raised by counsel on
either side we are inclined to formulate some broad guidelines as to the
manner in which the appointment of a sitting Judge of a High Court to a
Commission should be dealt with.
D (I) Appointment of a sitting Judge to the following offices may not
be objectionable:

[a] As a commission of inquiry under the Commissions of
Inquiry Act.

E [b) Judicial office which is of such a high charact_er and where
it has to be filled up by a sitting Judge to fulfill the
requirement of law, e.g. under Article 262 of the Constitution
of India which provides for adjudication of any dispute with
respect to the use, distribution or control of water or any

r
inter-State river or river-valley, read with Inter State Water
F
Disputes Act, 1956.

[c] Where expertise and experience ofa sitting Judge is required
to discharge the functions, a sitting Judge may be appointed,
for example, as a Member of the Finance Commission or
· Law Commission.
G
(2) Appointment of 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.
H (3) So also, appointment of sitting Judge to a Judicial Tribunal is not
T. FENNWALTERv. U.0.1. [K.G.BALAKRISHNAN,J.) 147
desirable where the statute or the rules and regulations framed A
therein contemplate provisions for removal from such office or
other disciplinary action by any authority.
(4) When a sitting Judge is appointed to a post or Tribunal, he shall
be amenable to the disciplinary jurisdiction only in the manner
provided for in Article 124(4) of the Constitution of India if he B
is a Judge of the Supreme Court or in the manner provided for
in proviso (b) to Article 217(1) read with Article 124(4) of the
Constitution. of India if he is a Judge of a High Court.
(5) Where the post may not be a whole time post but the nature of
duties are such that his order as a Tribunal or Commission would
be subjected to the supervisory jurisdiction of the High Court
c
under Articles 226, 227, a sitting Judge of the High Court may

'
~
not be appointed to such post, but if the sitting Judge concerned
has only a short period to retire from service, he may be appointed,
but after accepting the full-time post, he shall not sit as a Judge
and discharge duties and functions [both judicial and D
administrative] as a sitting Judge of High Court, even though he
may not demit office consequent on his appointment to a full-
time post.
(6) When the Chief Justice of a High Court is consulted for
appointment of a sitting Judge as Member, Chairman, Vice E
Chairman or 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.
F
(7) When a sitting Judge who has only a short period to retire from
service is appointed to a post, he shall express his willingness to
relinquish the remaining tenure as a Judge and then only his
service shall be made available for such post.

The appeal is disposed of accordingly. No order as to costs. G
K.K.T. Appeal disposed of.