Is the CJI’s Order Appointing High Court Judges as Investigators Unconstitutional?
Justice Markandey Katju raises concerns over the constitutional validity of CJI's order appointing a three-judge panel to investigate Justice Yashwant Varma’s case. Does the Supreme Court have administrative control over High Courts? Read the analysis.
Unconstitutional order of the CJI
By Justice Markandey Katju
The Chief Justice of India has appointed a committee/team of 3 Judges, 2 High Court Chief Justices, and one senior High Court Judge, to investigate the incident relating to Justice Yashwant Varma.
In this way, by an administrative order of the CJI, High Court Judges have been converted into investigating officers, which is the job of the police. Is this Constitutionally valid ?
I submit it is not.
Under the scheme of the Constitution of India, while High Courts have the power of supervision and control over the subordinate judiciary, vide Article 227, there is no analogous provision conferring power in the Supreme Court of supervision and control over the High Courts. In other words, while appeals can be filed against judicial orders of High Courts, on the administrative side, High Courts are autonomous. In particular, there is no provision in the Constitution empowering the CJI to appoint a sitting High Court judge as an investigating officer. How can a sitting High Court Judge be converted into an investigating officer ? Under which provision of the Constitution or any statute ? There is none
Consequently, I submit with respect, the CJI's order appointing the 3-member team/committee consisting of sitting High Court judges to investigate the incident relating to Justice Varma, is wholly unconstitutional and therefore void.
This distinction was affirmed in the case of Tirupati Balaji Developers (P) Ltd. v. State of Bihar, where the Supreme Court held that High Courts are not subordinate to the Supreme Court but are constitutional courts in their own right.
Furthermore, in Ganpat @ Ganapat v. State of Uttar Pradesh, the Supreme Court reiterated that it lacks superintendence power over High Courts, emphasizing that such authority is vested in the High Courts .
Justice Katju
(Justice Markandey Katju is a former Judge, of the Supreme Court of India, and former Chairman, of the Press Council of India. The views expressed are his own)
