Judicial Officers and Article 311 of the Constitution

Written by  //  March 10, 2011  //  Law & The Judiciary  //  20 Comments

In light of contemporary debates over judicial accountability, the question recently considered by the Supreme Court in Ajit Kumar v. Jharkhand is one of great significance. The Court was called on to consider the stringency of the fair hearing requirements when dismissing judicial officers for malpractice, and concluded that a liberal approach could be adopted in the interests of the judiciary as an institution.

The writ petitioner was a subordinate judge in Jharkhand, who was dismissed by the Governor of Jharkhand on the recommendation of the Full Court of the High Court of Jharkhand. The process had begun with a confidential report of the Inspecting Judge of the Garhwa Civil Court which observed that the petitioner did not prepare his own judgments and got them prepared from someone else. The Chief Justice, based on the report, referred the matter to a Full Court, which considered the infraction serious enough to recommend the petitioner’s removal from the service. Article 311 of the Constitution provides that a person who holds a civil post under a State cannot be dismissed by an authority subordinate to that which appointed him, and but for exceptional circumstances, he may not be dismissed ‘except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges’. However, Article 311(2)(b), allows for an inquiry to be dispensed with ‘where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry’. The Full Court thought fit to dispense with an inquiry since “it was not practicable in the interest of the institution to hold an inquiry since it may lead to the question of validity of several judgments rendered by him”. The Governor acted on the recommendation and dismissed the petitioner from the service. This decision was challenged by means of a writ petition, on the ground that there had been no notice, no enquiry, insufficient evidence, and non-application of mind. It was further contended that the requirements for removal under Article 311 of the Constitution were not satisfied.

The Supreme Court examined the scheme of the Constitutional provisions, and observed that although the pleasure principle was incorporated in Article 310, this was subject to Article 311. The powers contained therein, in particular paragraph (b), “is an absolute power of the disciplinary authority who after following the procedure laid down therein could resort to such extra ordinary power provided it follows the pre-conditions laid down therein meaningfully and effectively”. On facts, the Full Court was entitled to come to the conclusion that it did, and the Supreme Court observed that the concern for the interests of the institution of the judiciary was a valid ground for dispensing with the enquiry.

The petitioner further argued that the satisfaction as to the need to dispense with the inquiry had to be that of the ‘authority empowered to dismiss or remove’ him. This authority, by virtue of Article 311(1) could not be subordinate to that which appointed him. Here, since the satisfaction was that of the Full Court and not the Governor, the petitioner argued that Article 311(2) was violated.

The Supreme Court rightly dismissed this argument. However, with respect, the reasons provided by the Supreme Court appear dubious. The Court held that the petitioner was a judge for the purpose of Article 233 of the Constitution, and hence was appointed by the Governor in consultation with the High Court. Further, “under the scheme of the Indian Constitution the High Court is vested with the power to take decision for appointment of the sub-ordinate judiciary under Articles 234 to 236 of the Constitution. The High Court is also vested with the power to see that the high traditions and standards of the judiciary are maintained by the selection of proper persons to run the district judiciary”. On this basis, the Court concluded that allowing the High Court to make an assessment for Article 311(2)(b) did not violate Article 311(1). However, a simpler and less controversial rejection of the argument was possible, based on the language of Article 311(2)(b). The provision only requires the appropriate authority be satisfied of the need to dispense with the inquiry, and needs to record the reasons for the satisfaction in writing. It does not provide that the satisfaction cannot be based on the recommendation of a subordinate authority, or that the satisfaction must be based on investigations conducted personally by the appropriate authority. Hence, unless complete non-application of mind on part of the Governor is alleged and proved, the fact that his satisfaction was based on a recommendation of the High Court does not fall foul of Article 311(2)(b).

In sum, this decision is a welcome example of judicial accountability, and a liberal approach being adopted in the interests of the judiciary as an institution.

20 Comments on "Judicial Officers and Article 311 of the Constitution"

  1. Arghya March 11, 2011 at 8:43 am ·

    Hi Shantanu,

    Great post. The Court in this in para 11 seems to have gone into the merits of the question of whether it is actually reasonably practicable or not to conduct an inquiry to uphold the decision not to. However what would have been interesting, is that if in this case, or in any other, the Court found that in fact it was reasonably practicable to give him a hearing and the authority did not, does the Court retain the power to strike the decision down, in light of the express finality clause in Art. 311(3)?
    I agree that this is a boost for judicial accountability, but perhaps judicial accountability combined with a specified degree of due process may have been even better.

  2. Gautam March 11, 2011 at 6:49 pm ·

    Seems like an excellent and much-needed decision.

  3. Shantanu March 12, 2011 at 12:44 am ·

    Arghya and Gautam, thanks for your comments.

    Arghya, in response to your substantive comments:
    1. As to the finality of the decision provided for in Article 311(3), I would think that the finality cannot bar judicial review; and writs under Article 226 or Article 32 would still lie. However, since the standard of review would be Wednesbury, if you are suggesting that the Court would usually be loathe to reverse a decision taken under Article 311(2), I agree.
    2. As to the due process, I am afraid I cannot see what more could have been done on the facts of the case. The initiation of the process with a report, which was considered by the Full Court, which then made a recommendation to the Governor, seems to incorporate sufficient safeguards, especially given the interests of the judiciary as an institution involved.

  4. aditya gupta, 3rd year, gnlu July 3, 2011 at 6:57 pm ·

    its a very interesting post!!! i have one question connected!!!

    suppose a two judge bench of supreme court gives a conflicting opinion!! thereafter the matter is referre to larger bench in the Supreme court

    meanwhile, a similar case is going on in a high court!! What is the high Court judge supposed to do!??? wait till the decision of the larger bench comes? or dispose of the matter without waiting??

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