“Writs can’t be issued to High Court Judges”

The Hindu 19 July 14

Judges of the High Court are constitutional functionaries and not government servants. Hence, no writs can be issued to them, according to the Registrar-General of the Madras High Court.

The official was responding to a public interest litigation petition by the Prisoners’ Rights Forum seeking a direction to the High Court to constitute a Special Bench for deciding Habeas Corpus Petitions (HCP) challenging the preventive detention under the ‘Goondas Act’.

The forum, represented by its director, P. Pugalenthi, had submitted that the attack on prisoners inside the Central Prison, Puzhal here, on March 24 this year was to demand the early disposal of their petitions against their detention, pending before the High Court. Almost all detenus had filed petitions challenging the preventive detention. The number of petitions increased day by day. The court found it difficult to dispose of all cases in time. Hence, a Special Bench be formed to dispose of the cases without delay.

In a counter affidavit, the Registrar-General, P. Kalaiyarasan, said the right to have a speedy justice was available to prisoners under the Article 21 of the Constitution. But that right could not be enforced against the higher judiciary in view of the Constitutional limitations. 

It was the exclusive prerogative of the Chief Justice or the Acting Chief Justice to form Special Benches. High Court Judges were not ‘persons’ or ‘authorities’ or ‘government’ against whom writs can be issued under the Article 226 of the Constitution. 

Therefore, an action to enforce fundamental rights under the Articles 14 and 21 could not be sustained against the judiciary.

The Registrar-General said there was no necessity to constitute a Special Bench to deal with HCPs. There were nearly 1632 HCPs pending before the court as on May 31 this year.

 Of the total number, 1579 challenged detention under the Goondas Act. Even in the normal course of hearing, the Division Bench disposed of HCPs commensurate to the cases filed everyday. Thereby the pendency had been reduced drastically. 

This had been achieved in the absence of any special bench, the court official added.

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Judges are constitutional functionaries and not government servants: HC Registrar-General

Says it is the prerogative of the Chief Justice or the Acting Chief Justice to form Special Benches