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Judges of higher judiciary not government servants: Madras High Court Registrar General

Judges, particularly those of the higher judiciary are constitutional functionaries and not government servantsor officials and so no direction can been issued to them, the Registrar General of Madras High Court today said.

He stated this in a counter affidavit in response to a petition by Prisoners Rights Forum, seeking a direction to constitute a special bench for speedy disposal of Haebas Corpuspetitions arising out of the Goonda’s Act, under which prisoners are kept in jails for a long time because of pending Haebas Corpus petitions in the high court.

The Registrar General contended it is the exclusive prerogative power of Chief Justice or Acting Chief Justice to constitute any bench for speedy disposal of Haebas Corpus petitions and the representation made by the forum addressed to the RG was forwarded to the CJ or ACJ.

He said though the petition was filed supposedly against the high court represented by him, in essence it was filed to issue direction to the ACJ to constitute a special bench.

The Registrar General contended that such a prayer is not maintainable as the exclusive prerogative power to constitute benches is saved under Article 225 of the Constitution.

The word prerogative necessarily implies a high degree of discretion having been vested in the authority enjoying the prerogative, which excludes existence of any duty, he said.

He also stated that in case of discretion, no direction can be issued and the petition was bound to fail.

He further said judges of higher judiciary in India are not ‘persons’ or ‘authorities’ or ‘government’ against whom directions can be issued under Article 226 and that an action to enforce Fundamental Rights under Article 14 and 21 cannot be sustained as against the judiciary.

He said there are 1632 Haebas Corpus petitions pending before the high court as on May 31, of which 1579 are under Act 14 (Goondas Act). Even during normal course of hearing the division bench disposes of Haebas Corpus petitions commensurate to cases filed daily, drastically reducing pendency, achieved in the absence of any special bench.

Hence there was no need to constitute a special bench to deal with Haebas Corpus petitions, he said and sought dismissal of the petition.


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