Supreme Court of India
Xxx vs The Union Of India on 7 August, 2025
Author: Dipankar Datta
Bench: Dipankar Datta
REPORTABLE
2025 INSC 943
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) No. 699 OF 2025
XXX … PETITIONER
VS.
THE UNION OF INDIA & OTHERS … RESPONDENTS
JUDGMENT
DIPANKAR DATTA, J.
PREFACE
1. A deeply anguished Judge of the Allahabad High Court1 has petitioned this
Court for enforcement of his Fundamental Rights under Articles 14 and 21 of
the Constitution of India by invoking his Fundamental Right to constitutional
remedy guaranteed by Article 32 thereof.
2. Lest any observation made by us denies the petitioner a level playing field in
any future proceedings that he might face, we would tread the path cautiously
and refer to, very briefly, only the bare facts leading to presentation of this
writ petition as well as deal with only such of the several contentions, as
Signature Not Verified
urged, to the extent the same are absolutely necessary for our decision.
Digitally signed by
SONIA BHASIN
Date: 2025.08.07
17:13:58 IST
Reason:
1
Petitioner
1
FACTS
3. Petitioner finds himself in an unsavoury situation. While the Petitioner was a
Judge of the Delhi High Court, there was an incident of fire at a store-room in
the bungalow premises allotted to him. On the date of the incident, the
Petitioner was away from home. In the process of dousing the fire, certain
burnt currency notes were discovered in the store-room. Such discovery gave
rise to suspicion that the Petitioner may not have followed the universally
accepted values of judicial life including those included in the Restatement of
Values of Judicial Life dated 31st October, 1997; consequently, his conduct fell
for scrutiny. Without wasting time, the “In-house Procedure” devised by the
Supreme Court in its Full Court meeting dated 15th December, 19992 was set
in motion. The Chief Justice of the Delhi High Court 3 vide letter dated 21st
March, 2025 sought a response from the Petitioner. In his response dated 22nd
March, 2025, the Petitioner’s defence, inter alia, was that no cash was ever
placed in the store-room by him or his family members and he strongly
denounced the suggestion that the cash belonged to him or his family
members. Petitioner also stated that the same must have been planted in the
store-room to frame him. However, the Petitioner neither denied the incident
of fire nor discovery of the burnt currency notes. Upon receipt of the response,
the same was considered. Inter alia, on 22nd March, 2025, a three-member
Committee4 was constituted by the Chief Justice of India5. A press release of
2
PROCEDURE
3
CJ, DHC
4
COMMITTEE
5
CJI
2
even date named the members of the COMMITTEE, and also disclosed that the
CJ, DHC was asked not to assign judicial work to the Petitioner. At or about
the same time, presumably on the orders of the CJI, certain
documents/photographs/video footage linked to the fire incident and
discovery of currency notes had been placed in the public domain. On 24 th
March, 2025, the Collegium of the Supreme Court recommended the
Petitioner’s repatriation to his parent High Court. Immediately thereafter, the
COMMITTEE set out to accomplish the task assigned to it. The fire ravaged store-
room was inspected. Versions of several witnesses having some knowledge of
and/or relation with the incident of fire/discovery of burnt currency notes were
recorded by the COMMITTEE. Petitioner was furnished the versions of the
witnesses. Thereafter, he was afforded an opportunity to state his case. An
inquiry report6 dated 3rd May, 2025 of the COMMITTEE followed. On the basis of
appreciation of the materials collected in course of the inquiry, the COMMITTEE
recorded in the REPORT of having found sufficient substance in the allegations
raised in the letter dated 22nd March, 2025 of the CJI. It was recorded by the
COMMITTEE that misconduct found proved is serious enough to call for initiation
of proceedings for removal of the Petitioner from his office. Vide letter dated
4th May, 2025, the CJI gave the Petitioner the option to resign or to seek
voluntary retirement within 6th May, 2025, failing which the competent
authorities would be intimated to initiate action for removal. Petitioner
responded on 6th May, 2025 seeking reconsideration of the letter dated 4th
May, 2025 and more time to submit a written representation upon thorough
6
REPORT
3
review of the REPORT. At the same time, the Petitioner further expressed his
inability to either resign or seek voluntary retirement in the event his prayers
for grant of additional time and reconsideration were not allowed. According
to the Petitioner, acceptance of such advice could imply acquiescence to a
process and outcome that he considered fundamentally unjust. Petitioner also
urged that strict confidentiality be maintained by all stakeholders. The
prayers, apparently, were not granted and a further press release of 8th May,
2025 came to be issued recording that in terms of the PROCEDURE, the CJI had
written to the nation’s Hon’ble President and Hon’ble Prime Minister and
forwarded the REPORT of the COMMITTEE and the response of the Petitioner dated
6th May, 2025. What exactly were the contents of the CJI’s letter is, however,
unknown to the Petitioner as well as us.
4. In the prevailing circumstances, the Petitioner presented this writ petition on
17th July, 2025, claiming the following relief from the Court:
a. Issue an appropriate writ, order or direction declaring Paragraphs 5(b) and
7 of In-House Procedure dated 15.12.1999 to the extent that it enables the
In-House Committee to inquire and comment on the existence of ‘serious
misconduct warranting removal’ and the Hon’ble CJI to intimate the same
to the Hon’ble President and the Hon’ble Prime Minister for initiating
proceedings for removal and other consequential action as being
unconstitutional and ultra vires.
b. Issue an appropriate writ, order, or direction declaring the intimation by
the Hon’ble CJI to the Hon’ble President and the Hon’ble Prime Minister (as
referred to in the Press Release dated 08.05.2025) for initiation of action
for removal as being unconstitutional and ultra vires art 124 and 218 and
quash the same.
c. Issue an appropriate writ, order, or direction to quash and set aside the
Final Report dated 03.05.2025 submitted by the Committee, and all
consequential actions taken pursuant to the same.
d. Pass such other order(s) as this Hon’ble Court may deem fit in the facts
and circumstances of the case.
4
ARGUMENTS FOR THE PETITIONER
5. Mr. Kapil Sibal, learned senior counsel, duly assisted by other senior counsel,
advanced arguments at length in support of the writ petition. A brief note of
submissions was also placed by Mr. Sibal before the Court, which duly
captures the points of challenge and the contentions in support of the relief
claimed.
6. Mr. Sibal commenced his arguments by submitting that “it is a matter of
moment”.
7. According to Mr. Sibal, the Petitioner is aggrieved by the PROCEDURE to the
extent it permits the Committee to opine as to whether the misconduct calls
for initiation of proceedings for removal. He is also aggrieved because the
PROCEDURE permits the CJI to intimate the President and the Prime Minister
that the misconduct warrants initiation of proceedings for removal.
8. In course of his arguments, Mr. Sibal outlined what the Petitioner was not
challenging. While fairly admitting that the PROCEDURE itself is a valid in-house
mechanism contemplated for the purpose of discipline by self-regulation by
the higher judiciary, Mr. Sibal laid challenge to paragraphs 5(b) and 7 (ii)
thereof on the ground that these are ultra vires the Constitution violating
Articles 124 and 218 thereof. It was also fairly admitted that even though the
COMMITTEE’S remit was to conduct a fact-finding exercise, the subsequent
recommendation by the COMMITTEE regarding the necessity to initiate
proceedings for removal of a Judge is unconstitutional.
9. Moving ahead, Mr. Sibal accepted that he did not see any wrong in the CJI in
advising the Chief Justice of the concerned High Court not to allocate judicial
5
work to the Judge under probe or the CJI’s authority to forward the report of
the Committee to the President and the Prime Minister along with intimation
of the advice to the Chief Justice of the concerned High Court not to allocate
judicial work to the concerned Judge.
10. While, however, confining the constitutional challenge to the validity of
paragraphs 5(b) and 7 (ii) of the PROCEDURE, Mr. Sibal contended that Articles
124 and 218 of the Constitution are the only provisions under which a Judge
of a High Court may be removed. In exercise of the powers under Article
124(5), the Parliament has enacted the Judges (Inquiry) Act, 19687. He
argued that the constitutional provisions read with the Inquiry Act constitute
a complete and comprehensive code which occupies the field of the process
for removal.
11. Continuing further, Mr. Sibal stressed that the tenure of a High Court Judge is
protected by the Constitution, and such a Judge is subject to the Constitution
and the Constitution alone. Even Parliament is not permitted to discuss the
conduct of any Judge either of the Supreme Court or of the High Courts except
when a MOTION for presenting an address is admitted. Hence, any
procedure/process for removal, other than that provided for under Article 124,
would be unconstitutional. As per the constitutional scheme, removal of a
Judge from office is subject to the Judge being found guilty of proved
misbehaviour or incapacity in an inquiry conducted under the Inquiry Act;
however, the PROCEDURE to the extent it could trigger proceedings for removal,
7
Inquiry Act, hereafter
6
without being bound by the constitutional rigours, is liable to be held ultra
vires.
12. Mr. Sibal further argued that the removal process, set in motion by the
PROCEDURE with the Committee being empowered to make recommendation,
lacks constitutional sanction or contemplation. As against the safeguards
provided in the Inquiry Act, such as framing of charges, presentation of
evidence in support of the charge(s), statement of defence, cross-examination
of witnesses, strict proof, etc. – all of which are compliant with the overarching
mandate of Article 14 – the PROCEDURE contemplates such procedure as may
be appropriate in the facts of a case. The PROCEDURE does not obligate the
Committee to follow the codified or defined rules of evidence and permits the
Committee to adopt such procedure as necessary, potentially leading to
holding a Judge guilty, not just of serious misconduct but also calling for his
removal. Such process, based only on a preliminary or prima facie view, where
the Judge is denied the procedural safeguards which are otherwise available
in consonance with due process, is wholly arbitrary and violative of Article 14
of the Constitution.
13. The report of the COMMITTEE, Mr. Sibal further contended, could only be used
by the CJI to take corrective measures within his domain. It cannot possibly
interfere with the process envisaged under Article 124. Separation of powers
that is in-built in the Constitution demands that the judicial institution remains
clear of the constitutional process undertaken for removal.
14. Finally, Mr. Sibal sought to again impress upon us that the PROCEDURE to the
extent it permits the CJI to trigger the initiation of removal process by the
7
Parliament through his recommendation is bound to have its own impact.
Though termed as a recommendation or advice, such recommendation/advice
from a high constitutional functionary such as the CJI would clearly be far
more than being merely persuasive and is bound to influence the decision
making and evaluation process. It would act as a virtual death knell for a
Judge, particularly based on a prima facie evaluation of the allegations. Such
process would also circumvent the constitutionally prescribed mechanisms.
15. In any case, Mr. Sibal argued, uploading of the photographs/video footage on
the website of the Supreme Court together with the REPORT of the COMMITTEE
has the effect of convicting the Petitioner even before the procedure under
Article 124 has been initiated. Such being the state of affairs, the powers of
the CJI cannot extend to making such a recommendation. Hence, paragraphs
5(b) and 7(ii) of the PROCEDURE need to be set aside not only being violative
of the constitutional scheme for removal of Judges but also because they
deprive the Petitioner of equal protection of the laws, thereby infringing his
valuable right under Article 14 of the Constitution.
16. Having completed his address on the constitutional challenge, Mr. Sibal placed
reliance on the decisions of this Court in Indira Jaising v. Supreme Court
of India8 and Sahara India v. SEBI9, to contend that the allegations against
the Petitioner and the correspondence exchanged by and between him and
the CJI as well as the evidence (photographs/video footage), ought not to
have been put in the public domain. By so doing, not only has the good
8
(2003) 5 SCC 494
9
(2012) 10 SCC 603
8
reputation of the Petitioner as a Judge (which he built by years of dedicated
work) been tarnished, the public perception based on viewing of such evidence
led to an exercise which has held the Petitioner guilty even before an inquiry
according to fair procedure could commence and he being afforded the
opportunity to raise an effective defence. Highly critical of uploading of the
photographs/video footage on the website of this Court, Mr. Sibal contended
that the Petitioner’s precious right under Article 21 stood abrogated right from
the inception.
17. Relying heavily on the decision of the Constitution Bench in Sub-Committee
on Judicial Accountability v. Union of India10, Mr. Sibal argued that the
powers of the CJI in case of removal of a High Court Judge stand restricted.
It was pointed out that as the CJI has no disciplinary control over Judges of
the High Courts, the procedure for removal is not akin to removal of a
delinquent employee. The CJI, it was contended, cannot have an authoritative
say or partake in the process, which is otherwise the preserve of the
Parliament.
18. Referring to the decision in C. Ravichandran Iyer v. Justice A.M.
Bhattacharjee11, Mr. Sibal urged that the observations made therein were
only intended to fill the ‘yawning gap between proved misbehaviour and bad
conduct inconsistent with the high office’. The PROCEDURE, however, reaches
far and beyond filling the gap and, in fact, attempts to kick-start the process
under Article 124(5), which is the sole prerogative of the Parliament.
10
(1991) 4 SCC 699
11
(1995) 5 SCC 457
9
19. While concluding, Mr. Sibal prayed that paragraphs 5(b) and 7(ii) of the
PROCEDURE be declared ultra vires. He also prayed for a declaration that none
including the Parliament be influenced either by the REPORT of the COMMITTEE
or the recommendation/advice of the CJI.
20. We heard Mr. Rohatgi, learned senior counsel assisting Mr. Sibal, submit at
the very end that the Petitioner ought to have been given an opportunity of
personal hearing by the CJI before making his recommendation/tendering his
advice to the President and the Prime Minister. To support such submission,
he referred to a similar opportunity that was extended by the then CJI to a
Judge of the Calcutta High Court who also went through the same PROCEDURE.
Non-grant of such opportunity, according to him, breached principles of
equality before law.
PROCEEDINGS BEFORE THE COURT
21. Although the challenge read with the prayers in the writ petition relate to the
constitutionality of the PROCEDURE and the legality of the inquiry conducted by
the COMMITTEE together with its REPORT, as part of the PROCEDURE, Mr. Sibal
rightly did not argue the second point12 and restricted his arguments on the
point of constitutionality.
22. It is placed on record that the Petitioner not having objected to uploading of
the photographs/video footage at the first available opportunity and having
participated in the inquiry conducted by the COMMITTEE without raising any
demur, we posed a query: why should we entertain the writ petition at such
12
we need not spell out the reasons therefor in the judgment
10
a belated stage, notwithstanding the challenge laid on the constitutional
aspect, particularly when the inquiry had culminated in submission of the
REPORT by the COMMITTEE to the CJI who, in turn, had written to the President
and the Prime Minister while forwarding the REPORT together with the
Petitioner’s response?
23. In answer thereto, Mr. Sibal submitted that since a constitutional challenge
was being raised by the Petitioner and law being settled that there could be
no waiver of a Fundamental Right, the Court may not decline interference and
decide the writ petition based on the points argued by him.
24. During the course of hearing, we had also put it across to Mr. Sibal whether
the Judges (Protection) Act, 198513 would have any application in the instant
case. Faced with the Protection Act, Mr. Sibal sought to counter it by
submitting two points. First, that no law as is referred to in sub-section (2) of
Section 3 – either the Constitution or any statutory enactment – confers such
power on the Supreme Court; hence the Protection Act has no application.
Secondly, since sub-section (2) of Section 3 includes Central
Government/State Government, it would then mean that these authorities
could also initiate proceedings for removal of a High Court Judge which would
be wholly unconstitutional and could not have been the intention of the
Parliament.
25. Upon hearing Mr. Sibal and Mr. Rohatgi, we did not consider it necessary to
issue notice to the respondents and reserved judgment.
13
Protection Act
11
QUESTIONS
26. Based on Mr. Sibal’s arguments as well as the facts on record, the following
substantial questions of law arise for an answer:
I. Should the writ petition be entertained at all having regard to the
conduct of the Petitioner?
II. Does the PROCEDURE have legal sanction?
III. Is an inquiry and the consequent report in terms of the PROCEDURE
(which could be unfavourable to the Judge under probe) a parallel and
extra-constitutional mechanism?
IV. Does paragraph 5(b) of the PROCEDURE foul Article 124 and Article 125
read with Articles 217 and 218 of the Constitution or abrogate any
Fundamental Right of a Judge of a High Court?
V. Did the CJI/the COMMITTEE constituted by the CJI act in terms of the
PROCEDURE or in deviation thereof?
VI. Is the requirement of paragraph 7(ii) of the PROCEDURE obliging the CJI
to forward the report of the Committee to the President and the Prime
Minister unconstitutional?
ANALYSIS AND FINDINGS WITH REASONS
27. Appreciating the merits of the arguments advanced on behalf of the Petitioner
and expressing our opinion ought to be preceded by an examination of the
provisions in the Constitution relating to removal of a Judge of a High Court
from office, the law in terms whereof inquiry has to be held, the genesis of
the PROCEDURE, what this PROCEDURE is all about, the role of the CJI, the nature
12
of inquiry the PROCEDURE contemplates, what impact does such inquiry have
on a Judge of a High Court whose conduct is under probe, and other related
issues including the aspect of applicability of the Protection Act. This would
also necessarily require us to take note of the precedents in the field which
find place in the compilation of judgments handed over by Mr. Sibal. In our
view, such an exercise would significantly facilitate and aid answering the
above questions effectively and thereby enable us to complete the task at
hand appropriately.
CONSTITUTIONAL PROVISIONS AND THE INQUIRY ACT
28. That a Judge of a High Court cannot be removed from office except on the
ground of proved misbehaviour or proved incapacity admits of no doubt. The
provisions relatable to removal of a Judge of a High Court from office are
traceable to Articles 217 and 218 read with Article 124. Clauses (4) and (5)
of Article 124 read as follows:
124. Establishment and constitution of Supreme Court
…
(4) A Judge of the Supreme Court shall not be removed from his office
except by an order of the President passed after an address by each
House of Parliament supported by a majority of the total membership of
that House and by a majority of not less than two-thirds of the members
of that House present and voting has been presented to the President in
the same session for such removal on the ground of proved misbehaviour
or incapacity.
(5) Parliament may by law regulate the procedure for the presentation of
an address and for the investigation and proof of the misbehaviour or
incapacity of a Judge under clause (4).
…
29. Articles 217 (to the extent relevant) and 218 provide:
13
217. Appointment and conditions of the office of a Judge of a High
Court
(1) Every Judge of a High Court shall be appointed by the President by
warrant under his hand and seal after consultation with the Chief Justice of
India, the Governor of the State, and, in the case of appointment of a Judge
other than the Chief Justice, the Chief Justice of the High Court, and shall
hold office, in the case of an additional or acting Judge, as provided in article
224, and in any other case, until he attains the age of sixty-two years:
Provided that—
(a) ***
(b) a Judge may be removed from his office by the President in the
manner provided in clause (4) of article 124 for the removal of a Judge
of the Supreme Court;
(c) ***
(2) ***
(3) ***
218. Application of certain provision relating to Supreme Court to
High Courts
The provisions of clauses (4) and (5) of article 124 shall apply in relation to
a High Court as they apply in relation to the Supreme Court with the
substitution of references to the High Court for references to the Supreme
Court.
30. The law that is referred to in clause (5) of Article 124 is the Inquiry Act.
31. The Constitution itself does not prescribe the procedure for the presentation
of an address and for investigation and proof of the misbehaviour or incapacity
of a Judge but leaves it for the Parliament to regulate the same by law. In
exercise of such powers, as discussed above, the Parliament enacted the
Inquiry Act. The Inquiry Act, inter alia, provides for constitution of a
committee which is to conduct an investigation/inquiry into the allegation of
misbehaviour or incapacity levelled against the Judge. The procedure
enumerated in the Inquiry Act is in consonance with the principles of natural
justice in that, formal charges are framed, the Judge is provided with the
supporting material for each charge, opportunity is extended to cross-examine
14
witnesses as well as to present his defence. The committee has the same
powers as that of a civil court under the Code of Civil Procedure, 1908, for
summoning and enforcing the attendance of a person, examining a person on
oath, requiring discovery and production of documents, receiving evidence on
oath, issuing a commission for examination of witnesses or documents, and
for all such other matters as may be prescribed. It is imperative to note that
if the Judge is not found guilty of any charge(s) by the committee, then the
pending MOTION in the House or Houses of Parliament will not be proceeded
with. Thus, it marks the end of the proceedings.
32. The process for impeachment of a Judge, however, is very rigid at all levels –
starting with a MOTION in the House, followed by an investigation/inquiry
conducted by a committee comprising of persons of high calibre, adherence
to fair procedure, then the necessity of approval by a majority of the Houses
and finally the approval by the President whereafter a Judge can be removed
from office by impeachment.
33. These provisions apart, there are two other similarly worded articles in the
Constitution which, though not directly related to removal of a Judge of a High
Court, impose restrictions on discussions in the Parliament/State Legislatures
with respect to the conduct of a Judge of a High Court. They are Articles 121
and 211.
34. Mr. Sibal is right in his contention that apart from proviso (b) of clause (1) of
Article 217 and Article 218 read with clauses (4) and (5) of Article 124, there
is no other provision in the Constitution relating to removal of a Judge of a
High Court from his office. He is also right in contending that Article 121 even
15
bars the Parliament to discuss the conduct of a Judge of a High Court except
in the stated situation. Similar is the restriction imposed by Article 211.
35. A reading of the Constituent Assembly debates does not reveal any discussion
or debate on any proposed measure, other than removal by the Parliament in
the manner constitutionally ordained, if the conduct of a Judge of a High Court
amounts to misbehaviour but does not amount to such misbehaviour as would
warrant the extreme measure of removal from office. The framers of the
Constitution, in their wisdom, possibly might have thought that having regard
to the status of a Judge, being a high constitutional functionary in whom the
people would repose trust and faith for rendering justice, only such individuals
possessing the highest standards of integrity and moral character, apart from
legal acumen, would be considered for appointment to the judicial office; yet,
should there be an exceptional situation calling for removal of a Judge from
office and to ensure that the Constitution is not incomplete without an in-built
mechanism for a disciplinary measure, provisions for removal (by
impeachment) were incorporated. Indeed, it took Parliament long 18
(eighteen) years after the advent of the Constitution to enact the law wherefor
it was empowered by clause (5) of Article 124. It is also noteworthy that the
first process of removal of a Judge by impeachment did not see the light of
the day till the early nineties of the last century, i.e., almost 4 (four) decades
after the people proclaimed India as a sovereign democratic republic14. It does
suggest that the framers of the Constitution were not amiss in thinking that
an exceptional case for disciplining a Judge might seldom arise.
14
on 26th November, 1949
16
36. Nonetheless, times have changed and changed drastically. With the process
of appointment becoming executive-centric, fissures in the system became
apparent; aberrations of Judges started attracting notice. However, possibly
because of the cumbersome process that a process for removal by
impeachment involves, many a Judge could have escaped unscathed without
such aberration being brought in the public domain.
37. There have, however, been certain reported instances since the eighties of
the last century of Judges having indulged in (perceived) misbehaviour leading
to some of them being disciplined internally by the Chief Justices of the
concerned High Courts.
38. Till date, there have been only 4 (four) instances of MOTIONs for removal of a
Supreme Court/High Court Judges being admitted by the Parliament and not
a single instance of the MOTION being carried through (although one cannot
ignore that a couple of Judges strategically resigned prior to culmination of
the proceedings).
39. Be that as it may, the Constitution was and is silent with regard to any
disciplinary measure, short of removal by impeachment, should there be an
aberration or bad conduct by a Judge of a High Court as distinguished from
misbehaviour in the discharge of his judicial duties or administrative/non-
judicial/official duties.
40. It is worthy of note that six years before the turn of the last century, the Chief
Justice of the Bombay High Court was compelled to demit office on the ground
of alleged misbehaviour as a sequel to exertion of pressure by the local Bar
Council/Bar Associations. A writ petition under Article 32 of the Constitution
17
presented by a practising advocate changed the legal landscape of the
country. The decision on such writ petition, which laid down a precedent and
which we propose to consider a little later, has rightly been commented in one
of the subsequent decisions of this Court as having sowed the seeds for the
PROCEDURE.
THE PROCEDURE – ITS GENESIS AND CONTENTS
41. The PROCEDURE (commonly known as the “In-house Procedure”), which has
been developed by the Full Court of the Supreme Court through an
administrative resolution, serves as an internal mechanism to deal with
complaints of misconduct or incapacity against sitting Judges, both of the High
Courts and the Supreme Court.
42. Reading of paragraph 32 of the decision in Additional District and Sessions
Judge ‘X’ v. Registrar General, High Court of Madhya Pradesh15
provides useful guidance as to how the PROCEDURE came to be devised. It
reads:
“32. In furtherance of the directions issued in C. Ravichandran Iyer case,
this Court constituted a committee comprising of three Judges of this
Court, namely, Justices S.C. Agrawal, A.S. Anand (as he then was) and
S.P. Bharucha (as he then was), and the then two seniormost Chief
Justices of the High Courts i.e. Justices P.S. Misra and D.P. Mohapatra
(of the Andhra Pradesh High Court and the Allahabad High Court,
respectively), to lay down the ‘In-House Procedure’, for taking suitable
remedial action against Judges, who by their acts of omission or
commission, do not follow the accepted values of judicial life, including
the ideals expressed by the Supreme Court in the ‘Restatement of Values
of Judicial Life’. The Committee submitted its report on 31-10-1997. The
same was adopted with amendments, in a Full Court Meeting of the
Supreme Court of India, on 15-12-1999. In the aforestated report, three
sets of procedure for taking such suitable remedial action against Judges
were laid down. The first, related to the Judges of the High Courts, the15
(2015) 4 SCC 91
18
second, to the Chief Justices of the High Courts, and the third, to the
Judges of the Supreme Court. …”.
43. At the outset, the PROCEDURE itself records complaints made against Judges of
the High Court and the Supreme Court often being received either by the Chief
Justices of the High Courts or the CJI. Such complaints, also made to the
President of India, are generally forwarded to the CJI for being looked into.
Considering the lack of any constitutional mechanism or otherwise based
whereon measures could lawfully be taken when the CJI is seized of such
complaints, the Full Court of the Supreme Court by its resolution dated 15th
December, 1999 adopted the PROCEDURE.
44. The process under the PROCEDURE begins when a written complaint containing
verifiable and specific allegations is received by the CJI or the Chief Justice of
a High Court. What actions are required to be taken thereunder if the
complaint is found to be of a serious nature have been provided in paragraphs
1 to 3 of the PROCEDURE.
45. Should the matter merit a deeper probe, the CJI would constitute a Committee
consisting of two Chief Justices of the High Courts (other than the High Court
to which the Judge belongs) and one High Court Judge (paragraph 3), and the
Committee so constituted has the liberty to devise its own procedure
consistent with the principles of natural justice (paragraph 4). The inquiry,
being in the nature of a fact-finding exercise, entitles the Judge under probe
to appear and have his say recorded. Since it is not a formal judicial inquiry
and given its fact-finding and non-punitive character, examination/cross-
examination of witnesses and representation by lawyers are excluded.
19
46. Upon receipt of the report of inquiry from the Committee, the CJI is
empowered to take one of three possible courses of action, depending on the
nature and gravity of the findings qua the allegations. Firstly, if the Committee
concludes that the allegations are unfounded or lacking in substance, the CJI
may choose to close the matter [paragraph 5(a) read with paragraph 6].
Secondly, if the inquiry reveals serious misconduct, the CJI may advise the
Judge to resign his office or seek voluntary retirement [paragraph 7(i)]. If the
concerned Judge elects not to do so, the CJI shall intimate the President and
the Prime Minister that the allegations are serious enough to warrant initiation
of proceedings for removal and hence, judicial work has been withdrawn
[paragraph 5(b) read with para 7(ii)]. Thirdly, where the misconduct is
established but it is not so serious as to warrant removal, the CJI may call the
Judge concerned and advise him accordingly; the report of the Committee to
be placed on record may also be directed [paragraph 5(c) read with paragraph
8].
47. Despite the decision in Additional District and Sessions Judge ‘X’ (supra)
at paragraph 47 thereof having delineated the various steps in the PROCEDURE
through which the proceedings must pass, we have given a brief overview for
our own understanding.
PRECEDENTS
48. Having noted the genesis and the contents of the PROCEDURE, we proceed to
consider the precedents that have been cited which directly dealt with
proceedings/initiation of proceedings for removal of a Judge of a High Court.
20
49. The decision of the Constitution Bench of this Court in Sub-Committee on
Judicial Accountability (supra) is, incidentally, the sheet anchor of Mr.
Sibal’s arguments.
50. At the same time, other decisions of this Court having a material bearing for
deciding the question of constitutionality of the PROCEDURE would also
necessarily fall for consideration which we propose to consider in seriatim.
51. Sub-Committee on Judicial Accountability (supra) had to consider issues
of some importance bearing on the construction of Articles 121 and 124 of the
Constitution as well the provisions of the Inquiry Act. The occasion for the
controversy raised in the proceedings, the issues arising for decision and the
broad contentions raised by the parties are noted in paragraphs 3, 4 and 15,
respectively, of the majority judgment authored by Hon’ble B. C. Ray, J. (as
His Lordship then was). For the sake of completeness but, at the same time,
to maintain brevity, we discern that the main issues arising for decision were
(i) what is the legal position and status of a MOTION for the removal of a Judge
under a law made pursuant to Article 124(5) of the Constitution? (ii) whether
the Doctrine of Lapse would apply to such a MOTION upon the dissolution of
the Lok Sabha? (iii) whether the matters arising out of or relating to a MOTION
for removal of a Judge in either House of the Parliament are at all justiciable
before courts of law? and (iv) whether the Court should decline to exercise
jurisdiction as its decision and its writ might become infructuous (in view of
the fact that in the ultimate analysis, the final arbiter whether at all any
Address is to be presented rests exclusively with the Houses of Parliament and
which are wholly outside the purview of the courts)?
21
52. One of the contentions was Contention F, reading as follows:
“Contention F:— The process of removal by means of a MOTION for
address to the President is a political remedy. But the fundamental right
to move the Supreme Court for enforcement of fundamental rights take
within its sweep the right to access to a court comprising of Judges of
sterling and unsullied reputation and integrity which is enforceable. This
judicial remedy is independent of the constitutional remedy and that the
court has jurisdiction to decide as to its own proper constitution. In
exercise of this jurisdiction it should examine the grounds of the alleged
misbehaviour and restrain the Judge from judicial functioning.”
53. While rejecting the said contention, this Court, inter alia, held thus:
“111. The relief of a direction to restrain the Judge from discharging
judicial functions cannot be granted. It is the entire Constitutional
Scheme including the provisions relating to the process of removal of a
Judge which are to be taken into account for the purpose of considering
this aspect. It is difficult to accept that there can be any right in anyone
running parallel with the Constitutional Scheme for this purpose
contained in clauses (4) and (5) of Article 124 read with Article 121. No
authority can do what the Constitution by necessary implication forbids.
Incidentally, this also throws light on the question of interim relief in such
a matter having the result of restraining the Judge from functioning
judicially on initiation of the process under the Judges (Inquiry) Act,
1968. The Constitutional Scheme appears to be that unless the alleged
misbehaviour or incapacity is ‘proved’ in accordance with the provisions
of the law enacted under Article 124(5) and a MOTION for presenting an
address for removal of the Judge on the ground of proved misbehaviour
or incapacity is made, because of the restriction contained in Article 121,
there cannot be a discussion about the Judge’s conduct even in the
Parliament which has the substantive power of removal under Article
124(4). If the Constitutional Scheme therefore is that the Judge’s conduct
cannot be discussed even in the Parliament which is given the substantive
power of removal, till the alleged misconduct or incapacity is ‘proved’ in
accordance with the law enacted for this purpose, then it is difficult to
accept that any such discussion of the conduct of the Judge or any
evaluation or inferences as to its merit is permissible according to law
elsewhere except during investigation before the Inquiry Committee
constituted under the statute for this purpose. The indication, therefore,
is that interim direction of this kind during the stage of inquiry into the
alleged misbehaviour or incapacity is not contemplated it being alien to
our Constitutional Scheme.”
(emphasis laid by Mr. Sibal)22
54. Having read what Sub-Committee on Judicial Accountability (supra) ruled
while not accepting Contention F, we proceed to take note of the next relevant
decision, i.e., C. Ravichandran Iyer (supra).
55. Hon’ble K. Ramaswamy, J. (as His Lordship then was) speaking for the Bench
in C. Ravichandran Iyer (supra), after referring to previous decisions,
reaffirmed the importance of the CJI as the head of the institution, when a
matter questioning the integrity of a Judge arises, in paragraphs 35 and 36 of
the decision. In very clear words, His Lordship suggested an in-house
procedure to be followed by the Chief Justices of the High Courts or the CJI,
when they are seized of a complaint related to a Judge’s conduct. The CJI,
upon receipt of information from the Chief Justice of a High Court could take
such action as “deemed necessary or warranted”. Although, the concerned
Judge in this case had demitted office before the judgment was delivered, this
Court held that its statements were to be treated as a precedent. Relevant
passages from the decision read as follows:
“35. It is true that this Court has neither administrative control over the
High Court nor power on the judicial side to enquire into the misbehaviour
of a Chief Justice or Judge of a High Court. When the Bar of the High
Court concerned reasonably and honestly doubts the conduct of the Chief
Justice of that Court, necessarily the only authority under the
Constitution that could be tapped is the Chief Justice of India, who in
common parlance is known as the head of the judiciary of the country. It
is of importance to emphasise here that impeachment is meant to be a
drastic remedy and needs to be used in serious cases. But there must
exist some other means to ensure that Judges do not abuse the trust the
society has in them. It seems to us that self-regulation by the judiciary
is the only method which can be tried and adopted. …
***
40. Bearing all the above in mind, we are of the considered view that
where the complaint relates to the Judge of the High Court, the Chief
Justice of that High Court, after verification, and if necessary, after
confidential enquiry from his independent source, should satisfy himself
23
about the truth of the imputation made by the Bar Association through
its office-bearers against the Judge and consult the Chief Justice of India,
where deemed necessary, by placing all the information with him. When
the Chief Justice of India is seized of the matter, to avoid embarrassment
to him and to allow fairness in the procedure to be adopted in furtherance
thereof, the Bar should suspend all further actions to enable the Chief
Justice of India to appropriately deal with the matter. This is necessary
because any action he may take must not only be just but must also
appear to be just to all concerned, i.e., it must not even appear to have
been taken under pressure from any quarter. The Chief Justice of India,
on receipt of the information from the Chief Justice of the High Court,
after being satisfied about the correctness and truth touching the conduct
of the Judge, may tender such advice either directly or may initiate such
action, as is deemed necessary or warranted under given facts and
circumstances. If circumstances permit, it may be salutary to take the
Judge into confidence before initiating action. On the decision being taken
by the Chief Justice of India, the matter should rest at that. This
procedure would not only facilitate nipping in the bud the conduct of a
Judge leading to loss of public confidence in the courts and sustain public
faith in the efficacy of the rule of law and respect for the judiciary, but
would also avoid needless embarrassment of contempt proceedings
against the office-bearers of the Bar Association and group libel against
all concerned. The independence of judiciary and the stream of public
justice would remain pure and unsullied. The Bar Association could
remain a useful arm of the judiciary and in the case of sagging reputation
of the particular Judge, the Bar Association could take up the matter with
the Chief Justice of the High Court and await his response for the action
taken thereunder for a reasonable period.
41. In case the allegations are against Chief Justice of a High Court, the
Bar should bring them directly to the notice of the Chief Justice of India.
On receipt of such complaint, the Chief Justice of India would in the same
way act as stated above qua complaint against a Judge of the High Court,
and the Bar would await for a reasonable period the response of the Chief
Justice of India.
42. It would thus be seen that yawning gap between proved
misbehaviour and bad conduct inconsistent with the high office on the
part of a non-cooperating Judge/Chief Justice of a High Court could be
disciplined by self-regulation through in-house procedure. This in-house
procedure would fill in the constitutional gap and would yield salutary
effect. Unfortunately, recourse to this procedure was not taken in the
case at hand, may be, because of absence of legal sanction to such a
procedure.
43. Since the 1st respondent has already demitted the office, we have
stated as above so that it would form a precedent for future.”
(emphasis ours)
24
56. After the PROCEDURE was devised in 1999 by the Full Court, acting on the
precedent set by C. Ravichandran Iyer (supra), Indira Jaising (supra)
happened to be the first reported decision that had the occasion to consider
whether a report of the Committee, constituted by the CJI in terms of the
PROCEDURE, ought or should be placed in the public domain. Answering the
question in the negative, what the Court said [speaking through Hon’ble S.
Rajendra Babu, J. (as the Chief Justice of India then was)] provides valuable
guidance. Relevant passages read as under:
“2. In the Chief Justices’ Conference held in December 1999, sixteen
clauses formed part of the Code of Conduct in addition to the declaration
of assets by the Judges and in-house procedure was suggested in the
event of any complaint against any Judge. However, sanction for these
guidelines is absent. In our constitutional scheme it is not possible to vest
the Chief Justice of India with any control over the puisne Judges with
regard to conduct, either personal or judicial. In case of breach of any
rule of the Code of Conduct, the Chief Justice can choose not to post
cases before a particular Judge against whom there are acceptable
allegations. It is possible to criticise that decision on the ground that no
enquiry was held and the Judge concerned had no opportunity to offer
his explanation particularly when the Chief Justice is not vested with any
power to decide about the conduct of a Judge. There is no adequate
method or machinery to enforce the Code of Conduct. Article 124
provides for appointment of Judges of this Court and also their removal.
Similarly, Article 217 deals with the appointment and removal of the
Judges of the High Court. In the Judges (Inquiry) Act of 1968 provisions
are made for investigation into misbehaviour or incapacity of a Judge. It
may be noted that since Judges of the superior courts occupy very high
positions, disciplinary proceedings which exist in the case of all other
employees cannot be thought of.
3. The Committee referred to by the petitioner is stated to have been
constituted as a part of in-house procedure. A Judge cannot be removed
from his office except by impeachment by a majority of the House and a
majority of not less than 2/3rds present and voting as provided by
Articles 124 and 217 of the Constitution of India. The Judges (Inquiry)
Act, 1968 has been enacted providing for the manner of conducting
inquiry into the allegation of judicial conduct upon a MOTION of
impeachment sponsored by at least hundred Lok Sabha Members or fifty
Rajya Sabha Members. The Presiding Officer of the House concerned has
the power to constitute a committee consisting of three persons as
enumerated therein. No other disciplinary inquiry is envisaged or
25
contemplated either under the Constitution or under the Act. On account
of this lacuna in-house procedure has been adopted for inquiry to be
made by the peers of Judges for report to the Hon’ble the Chief Justice
of India in case of a complaint against the Chief Justices or Judges of the
High Court in order to find out the truth of the imputation made in the
complaint and that in-house inquiry is for the purpose of his own
information and satisfaction. A report made on such inquiry if given
publicity will only lead to more harm than good to the institution as
Judges would prefer to face inquiry leading to impeachment. In such a
case the only course open to the parties concerned if they have material
is to invoke the provisions of Article 124 or Article 217 of the Constitution,
as the case may be. It is not appropriate for the petitioner to approach
this Court for the relief or direction for release of the report, for what the
Chief Justice of India has done is only to get information from peer Judges
of those who are accused and the report made to the Chief Justice of
India is wholly confidential. The said report is only for the purpose of
satisfaction of the Chief Justice of India that such a report has been made.
It is purely preliminary in nature, ad hoc and not final. If the Chief Justice
of India is satisfied that no further action is called for in the matter, the
proceeding is closed. If any further action is to be taken as indicated in
the in-house procedure itself, the Chief Justice of India may take such
further steps as he deems fit. Therefore, in the hierarchy of the courts,
the Supreme Court does not have any disciplinary control over the High
Court Judges, much less the Chief Justice of India has any disciplinary
control over any of the Judges. That position in law is very clear. Thus,
the only source or authority by which the Chief Justice of India can
exercise this power of inquiry is moral or ethical and not in exercise of
powers under any law. Exercise of such power of the Chief Justice of India
based on moral authority cannot be made the subject-matter of a writ
petition to disclose a report made to him.”
(emphasis ours)
57. This decision was followed by P.D. Dinakaran (1) v. Judges Inquiry
Committee16. In this case, no part of the PROCEDURE or any step taken in
furtherance thereof was under challenge. The challenge in the writ petition
under Article 32 of the Constitution was to an order of the Chairman of the
Rajya Sabha constituting a three-member committee under Section 3(2) of
the Inquiry Act. The principle, nemo debet esse judex in propria sua causa,
was sought to be invoked and a pointed challenge to the inclusion of a senior
16
(2011) 8 SCC 380
26
advocate in the committee in the category of ‘jurist’ was laid on the ground of
bias. The petitioning judge had not approached the Court soon after the
committee was constituted; on the contrary, he did so ten months later when
he was notified of the charges. Based on such conduct, this Court held:
“80. The issue deserves to be considered from another angle. Admittedly,
the petitioner raised the plea of bias only after receiving the notice dated
16-3-2011 which was accompanied by the statement of charges and the
lists of documents and witnesses. The petitioner’s knowledgeful silence
in this regard for a period of almost ten months militates against the bona
fides of his objection to the appointment of Respondent 3 as member of
the Committee. A person of the petitioner’s standing can be presumed to
be aware of his right to raise an objection. If the petitioner had the
slightest apprehension that Respondent 3 had prejudged his guilt or he
was otherwise biased, then, he would have on the first available
opportunity objected to his appointment as a member of the Committee.
The petitioner could have done so immediately after the publication of
the Notification dated 15-1-2010. He could have represented to the
Chairman that investigation by a Committee of which Respondent 3 was
a member will not be fair and impartial because the former had already
presumed him to be guilty.
81. … However, the fact of the matter is that the petitioner never thought
that Respondent 3 was prejudiced or ill-disposed against him and this is
the reason why he did not raise any objection till April 2011 against the
inclusion of Respondent 3 in the Committee. This leads to an irresistible
inference that the petitioner had waived his right to object to the
appointment of Respondent 3 as member of the Committee. The right
available to the petitioner to object to the appointment of Respondent 3
in the Committee was personal to him and it was always open to him to
waive the same.”
58. Next in line is the decision in Additional District and Sessions Judge ‘X’
(supra). Hon’ble J. S. Khehar, J. (as the Chief Justice of India then was),
speaking for the Court, went deep into the PROCEDURE and observed that:
“35. It is, therefore, apparent that the seeds of the “In-House Procedure”
came to be sown in the judgment rendered by this Court in C.
Ravichandran Iyer case. It is also apparent, that actions have been
initiated under the ‘In-House Procedure’, which has the approval of the
Full Court of the Supreme Court of India. And, based on the aforestated
‘In-House Procedure’, impeachment proceedings were actually initiated
by Parliament under Article 124 of the Constitution of India. There can
27
therefore be no doubt whatsoever, that in the above situation, the ‘In-
House Procedure’ is firmly in place, and its adoption for dealing with
matters expressed by this Court in C. Ravichandran Iyer case is now a
reality.
36. Despite the above conclusion, it is imperative to take into
consideration the observations recorded by this Court in Indira
Jaising v. Registrar General, Supreme Court of India , as under : (SCC
pp. 496-97, paras 2-3)
“…………”
A perusal of the observations made by this Court in the extract
reproduced above, reveals that the existence of the ‘In-House Procedure’
is now an established means for inquiring into allegations levelled against
a Judge of a superior court, through his peers. It is a confidential inquiry
for institutional credibility under the charge of the Chief Justice of India.
And therefore, its affairs are to be kept out of public domain. The
proceedings under the above procedure being sensitive, are required to
be inaccessible to third parties. And therefore, the prayer seeking the
disclosure of the report submitted on the culmination of the ‘In-House
Procedure’ was declined. The object sought to be addressed through the
‘In-House Procedure’, is to address concerns of institutional integrity.
That would, in turn, sustain the confidence of the litigating public, in the
efficacy of the judicial process.
37. It is impermissible to publicly discuss the conduct of a sitting Judge,
or to deliberate upon the performance of his duties, and even on/of court
behaviour, in public domain. Whilst the ‘In-House Procedure’ lays down
means to determine the efficacy of the allegations levelled, it is now
apparent, that the procedure is not toothless, in the sense, that it can
lead to impeachment of the Judge concerned under Article 124 of the
Constitution of India. … But, that should not be understood to mean, that
an individual concerned, who is called upon to subject himself/herself to
the contemplated procedure, should be precluded or prevented from
seeking judicial redress. It is now well understood, that an individual who
subjects himself/herself to the jurisdiction of an authority, cannot turn
around to find fault with it at a later juncture. If there is a fault, the same
should be corrected, before one accepts to submit to the jurisdiction of
the authority concerned. The submission of the petitioner in the present
case, to the ‘two-Judge Committee’, would certainly have had the above
effect. We are therefore satisfied to hold, that those who are liable to be
affected by the outcome of the ‘In-House Procedure’, have the right to
seek judicial redressal, on account of a perceived irregularity. The
irregularity may be on account of the violation of the contemplated
procedure, or even because of contemplated bias or prejudice. It may be
on account of impropriety. The challenge can extend to all subjects on
which judicial review can be sought. The objections raised on behalf of
Respondent 3, in respect of the sustainability of the instant petition at
the hands of Addl. D & SJ X, are therefore wholly untenable. The
challenge to the maintainability of the instant writ petition, is accordingly
declined.
28
***
55. In view of the consideration and the findings recorded hereinabove,
we may record our general conclusions as under:
55.1. The ‘In-House Procedure’ framed by this Court, consequent upon
the decision rendered in C. Ravichandran Iyer case can be adopted to
examine allegations levelled against the Judges of the High Courts, Chief
Justices of the High Courts and Judges of the Supreme Court of India.
55.2. The investigative process under the ‘In-House Procedure’ takes
into consideration the rights of the complainant, and that of the Judge
concerned, by adopting a fair procedure, to determine the veracity of
allegations levelled against a sitting Judge. At the same time, it
safeguards the integrity of the judicial institution.
55.3. Even though the said procedure should ordinarily be followed in
letter and spirit, the Chief Justice of India would have the authority to
mould the same, in the facts and circumstances of a given case, to ensure
that the investigative process affords safeguards, against favouritism,
prejudice or bias.
55.4. In view of the importance of the ‘In-House Procedure’, it is
essential to bring it into public domain. The Registry of the Supreme
Court of India, is accordingly directed to place the same on the official
website of the Supreme Court of India.”
59. It is in the conspectus of the above noted precedents that the contentions
urged by the Petitioner would fall for consideration.
OTHER TOPICS
60. Dwelling on a few more topics having relevance and materiality would not be
inapt. Hence, we venture to do that now while making our own observations
to assist us in accomplishing our task.
ROLE OF THE CJI
61. While the CJI is no doubt primus inter pares – first among equals – and also
does not exercise powers of superintendence over the High Courts and the
Judges of the High Court, nonetheless, the CJI bears a significant moral
responsibility as the foremost judicial officer to ensure that the judiciary of the
29
country functions in a transparent, efficient and constitutionally appropriate
manner.
62. Petitioner has challenged the CJI’s recommendation for initiation of
proceedings for removal (if at all such recommendation has been made, for
we do not know what exactly was intimated to the President and the Prime
Minister) on the ground that the CJI, under the constitutional scheme, has no
authority to make such recommendation and moreover, such opinion would
prejudice the Members of the Parliament and violate the spirit of separation
of powers.
63. The PROCEDURE contemplates withdrawal of judicial work of the Judge under
probe. While forwarding the report of inquiry to the President/the Prime
Minister, the CJI does so for indicating why judicial work is not assigned to the
Judge, not as to why he should be impeached/removed. Withdrawing judicial
work from a Judge is indeed an extreme measure and, therefore, has to be
based on sound reasons; hence, the report of inquiry forms the plinth for the
President and the Prime Minister to be intimated of such an action. This is an
important distinction, not noticed by the Petitioner.
64. Assuming arguendo that the CJI endorsed the findings in the REPORT submitted
by the COMMITTEE and did recommend initiation of proceedings against the
Petitioner for removal from office, we have no hesitation to say that the CJI is
not a mere post office between the COMMITTEE and the President/the Prime
Minister that the REPORT is to be forwarded without any
remarks/recommendation. The CJI is clearly an important person, if not the
most, in the larger scheme of maintaining institutional interest and credibility
30
to ascertain whether a Judge has indulged in misconduct. As per the
PROCEDURE, after receiving a complaint against a Judge or a report from the
Chief Justice of the High Court of which he is a Judge, the CJI has to apply his
mind to the nature of complaint/report together with supporting materials, if
any. If the CJI believes that the matter requires a deeper probe, he is required
to constitute a Committee for an in-house inquiry. The report of inquiry may,
or may not, find the allegations against the Judge to be serious, so as to call
for any measure. However, if it does, the CJI is under an obligation to forward
the report to the President and the Prime Minister. We see no justification to
hold that in so forwarding, the CJI may not give his own views.
65. Moreover, the President of India is not a stranger to the judicial process. In K.
Veeraswami v. Union of India17, the Court noted that:
“51. The President is not an outsider so far as judiciary is concerned. The
President appoints the Judges of the High Courts and the Supreme Court
in exercise of his executive powers. Clause (1) of Article 217 provides
that every Judge of the High Court shall be appointed by the President
after consultation with the Chief Justice of India, the Governor of the
State, and in the case of appointment of a Judge other than the Chief
Justice, the Chief Justice of the High Court. Similarly the President
appoints the Judges of the Supreme Court. Clause (2) of Article 124
provides that every Judge of the Supreme Court shall be appointed by
the President in consultation with such of the Judges of the Supreme
Court and of the High Courts as the President may deem necessary for
the purpose and in case of appointment of a Judge other than the Chief
Justice, the Chief Justice of India shall always be consulted. The President
exercises this power with the aid and advise of his Council of Ministers
under Article 74 of the Constitution. (Shamsher Singh v. State of
Punjab [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814]
and S.P. Gupta v. Union of India [1981 Supp SCC 87 : AIR 1982 SC 149]
). Parliament has no part to play in the matter of appointment of Judges
except that the executive is responsible to the Parliament.”17
(1991) 3 SCC 655
31
66. We wish to go a bit further in observing that the President is not only not an
outsider to the judiciary but also not an outsider to the PROCEDURE itself. In the
prefatory paragraphs of the PROCEDURE, as devised by the Full Court, it has
been acknowledged that complaints are received by the CJI from the office of
the President. Having received such complaints from the President, it is quite
but natural that the CJI would not only acknowledge receipt of such complaints
but also apply his mind and respond to the same, wherever necessary.
67. Pausing here for a moment, what else is the CJI expected to do, if he is of the
view that the matter requires a deeper probe? We hasten to add that where
the Committee itself (constituted by the CJI) finds substance in the allegations
and the misconduct found is serious enough to call for initiation of proceedings
for removal, the CJI does have the authority, in a fit and proper case, to
endorse such finding while forwarding the report of inquiry.
68. Next, the argument that the Members of either or both houses of the
Parliament could be influenced by the CJI’s opinion is not acceptable since the
opinion is not forwarded either to the Speaker of the Lok Sabha or to the
Chairman of the Rajya Sabha. For arguments sake, even if it is assumed that
Members of Parliament have had access to the recommendation/advice of the
CJI, if any, nothing much turns on it. The Inquiry Act includes a specific
mechanism which has to be statutorily followed before any address for
impeachment is made in the House(s). The report of the Committee being
preliminary in nature, ad hoc and not final, as held in Indira Jaising (supra),
cannot affect the Petitioner in future proceedings unless such report is relied
32
upon at a future stage of the proceedings/at the inquiry; if relied upon, the
Petitioner would be free to exercise his rights as are available in law.
69. At the same time, it needs no emphasis that although the CJI is the head of
the institution, he too is not above the law which is supreme; hence, utmost
care has to be taken to ensure that any action of the CJI is not in deviation of
the PROCEDURE which permits the in-house inquiry to be undertaken.
THE JUDGES (PROTECTION) ACT
70. The relevant provisions of the Protection Act are reproduced hereunder:
“2. Definition.—In this Act, ‘Judge’ means not only every person who is
officially designated as a Judge, but also every person— (a) who is
empowered by law to give in any legal proceeding a definitive judgment,
or a judgment which, if not appealed against, would be definitive, or a
judgment which, if confirmed by some other authority, would be
definitive; or (b) who is one of a body of persons which body of persons
is empowered by law to give such a judgment as is referred to in clause
(a).
3. Additional protection to Judges.—
(1) Notwithstanding anything contained in any other law for the time
being in force and subject to the provisions of sub-section (2), no court
shall entertain or continue any civil or criminal proceeding against any
person who is or was a Judge for any act, thing or word committed, done
or spoken by him when, or in the course of, acting or purporting to act
in the discharge of his official or judicial duty or function.
(2) Nothing in sub-section (1) shall debar or affect in any manner the
power of the Central Government or the State Government or the
Supreme Court of India or any High Court or any other authority under
any law for the time being in force to take such action (whether by way
of civil, criminal, or departmental proceedings or otherwise) against any
person who is or was a Judge.”
(emphasis ours)
71. The Protection Act, we guess, may not have been brought to the notice of this
Court in any of the previous decisions considered here by us. Viewed in that
light, this decision could be the first of judicial pronouncements by this Court
touching Section 3(2) of the Protection Act vis-à-vis the PROCEDURE; hence, we
33
propose to deal with it in some detail while assigning reasons for our firm
opinion on applicability of the Protection Act in the instant case.
72. First, the definition of a Judge in the Protection Act is an expansive one
intended to take into its fold anyone empowered by law to give a definitive
judgment in a legal proceeding. Therefore, the protection envisaged
thereunder applies not only to the Judges appointed under the Constitution
(i.e., the Supreme Court and the High Courts) and the Judges recognised by
the Constitution (the district Judiciary) but also to judges of various tribunals
and quasi-judicial bodies having powers of adjudication across the country.
73. Secondly, Section 3(1) of the Protection Act provides that no Court would
entertain any civil or criminal proceeding against a judge acting in his official
or judicial duty or function. In the case of D.C. Saxena (Dr) v. Hon’ble The
Chief Justice of India18, it was observed that:
“57. ….The protection of Articles 124(4), 121, 211, the Judicial Officers
Protection Act, 1850 and the Judges (Protection) Act, 1985 is to ensure
independence to the judiciary. Threat to judicial process is a challenge to
the authority of the court or the majesty of justice. It would be ex facie
contumacious conduct.”
74. While referring to the Statement of Objects and Reasons of the Protection
Act, this Court in State of Rajasthan v. Prakash Chand19 noticed its object
and purport as follows:
“35. Even under the Judges (Protection) Act, 1985 immunity has been
given to judicial officers in relation to judicial work done by them as well
as for the judicial orders made by them. The Statement of Objects and
Reasons for introducing the Bill in relation to the 1985 Act which reads
thus is instructive:
18
(1996) 5 SCC 216
19
(1998) 1 SCC 1
34
‘Judiciary is one of the main pillars of parliamentary democracy as
envisaged by the Constitution. It is essential to provide for all
immunities necessary to enable Judges to act fearlessly and impartially
in the discharge of their judicial duties. It will be difficult for the Judges
to function if their actions in court are made subject to legal
proceedings, either civil or criminal.’ …”
75. A similar sentiment was noticed in the Constitution Bench decision in
Supreme Court Advocates-on-Record Assn. v. Union of India20 wherein
it was observed:
“724. Similarly, Section 3 of the Judges (Protection) Act, 1985 provides,
inter alia, that no court shall entertain or continue any civil or criminal
proceeding against any person who is or was a Judge for any act, thing
or word committed, done or spoken by him when, or in the course of,
acting or purporting to act in the discharge of his official or judicial duty
or function. This is in addition to the protection given by Section 77 of
the Penal Code, 1860…”
76. Indeed, Section 3(1) is subject to Section 3(2) and does not expressly prohibit
a departmental proceeding or otherwise but bars entertainment and
continuance of civil or criminal proceedings against a Judge as defined in
Section 2 for any act, thing or word committed, done or spoken by him when,
or in the course of, acting or purporting to act in the discharge of his official
or judicial duty or function.
77. Section 3(2) starts with a non-obstante clause with reference to Section 3(1)
and inter alia specifically ordains that the authorities mentioned therein are
not denuded of the power to initiate civil, criminal, or departmental
proceedings or otherwise against any Judge as long as the law in force allows
them to do so. We place sufficient emphasis on the word “otherwise” as
20
(2016) 5 SCC 1
35
present in Section 3(2). The PROCEDURE having provisions for an in-house
inquiry, with which we are concerned, is admittedly not akin to any inquiry
connected with a departmental proceeding since it lacks the bearings of a true,
valid and legal departmental proceeding. It is a proceeding akin to a
preliminary fact-finding inquiry intended to serve a specific purpose. However,
the PROCEDURE contemplating a fact-finding inquiry can and does very well fit
in the mould of the word “otherwise”. It is a cardinal principle that no word in
a statute is superfluous. We need not burden our judgment with referring to
precedents on this point.
78. We have noted the response of Mr. Sibal earlier that no law exists conferring
power on the Supreme Court to initiate proceedings against a Judge of a High
Court.
79. Attractive though at first blush, and accepting that a Judge cannot be removed
from office except in the manner ordained by the Constitution, this submission
of Mr. Sibal fails to take note of the legal position flowing from Article 141 of
the Constitution. As noted in the decisions starting with C. Ravichandran
Iyer (supra), the “In-house Procedure” proposes to fill the gap in the
constitutional mechanism and the ground realties present. Paragraph 43 of
the decision quoted above provides the guiding light for this purpose.
Parliament has saved the Supreme Court’s authority to initiate such
proceedings and take such action as it thinks fit, provided there is a law for
the time being in force in that regard by enacting sub-section (2) of Section
3; and, the law declared by the Court in C. Ravichandran Iyer (supra) is
what bridges the breach.
36
80. Moreover, the 1999 Full Court resolution has been framed on the basis of this
decision; therefore, there is full legal sanction to the PROCEDURE when read in
the light of guidance provided by Article 141 of the Constitution.
81. It was also submitted that if we propose to interpret the Protection Act as
conferring power to proceed against a Judge of a High Court, then the Central
Government/State Government would also be able to initiate proceedings for
such removal. While respectfully disagreeing with Mr. Sibal, we have no
hesitation to hold that inclusion of the Central Government or the State
Government or such other authority in sub-section (2) of Section 3 is for the
simple reason that ‘Judge’, as defined in the Protection Act, is not limited to
the Judges of the Supreme Court and/or the High Court but also includes
judges conducting judicial and quasi-judicial proceedings in the Tribunals and
quasi-judicial bodies, thereby ensuring that the protection granted under the
Protection Act encompasses all such individuals having authority to exercise
judicial power under the law.
82. In our considered opinion, the Protection Act does not offend the constitutional
scheme present; and, being in addition to the extant provisions, does not
affect the Supreme Court’s authority to take such action, as deemed fit,
against a Judge of a High Court who is alleged to have indulged in misconduct
in terms of the PROCEDURE.
83. In interpreting the Protection Act, we are once again reminded of the “yawning
gap” in the procedure as noticed in C. Ravichandran Iyer (supra), on ‘who’
sets the ball rolling. If we were to accept the contention of Mr. Sibal, the
Supreme Court and the CJI would be powerless to initiate any action even on
37
the face of allegations of gross misconduct against a sitting Judge of a High
Court which cannot be the legislative intention. To address the growing
concern of incidents of misconduct, the PROCEDURE has been craftily designed
to discipline Judges internally for such misconduct that is sufficient to tarnish
the dignity of his office as well as the institution to which he belongs. The
recognition that self-imposed ethical norms are integral to the judiciary’s
credibility, forms the cornerstone of the non-statutory but wholly legal internal
procedure for maintaining discipline and, by extension, integrity of the
institution. On this construction, we hold that the CJI’s discretion as to
whether, where and when to act, mindful of the substance in the complaints
received, would obviously be a regulated discretion; but, once the ball is set
rolling by the CJI, it must end with his recommendation/advice to the
President and the Prime Minister depending on what the Committee records
as its findings.
84. It does not require any emphasis that judicial officers in every rank, and more
specifically, the Judges in the higher echelons of the Judiciary owe huge
obligation to the people of this country. No Judge, either of the Supreme Court
or the High Courts, being above the law, acting in the discharge of his judicial
or administrative/non-judicial or official duties in a manner attracting a
possible complaint of not abiding by the Restatement of Values of Judicial Life
(widely regarded now as the Code of Conduct for Judges of the Supreme Court
and the High Courts) has to be shunned. Frivolous complaints being lodged
by disgruntled litigants, lawyers and others, though cannot be avoided, the
path of probity also can never be abandoned by a Judge. Any thought of there
38
being absence of disciplinary measure other than removal by impeachment
(which has never fructified over the years despite occasions calling for it) and
therefore escaping unscathed despite committing a misbehaviour or indulging
in bad conduct/misconduct, is what is normal, should be eschewed. With the
advancement in science and technology and all other spheres of work, it is
quite possible to bring to the CJI’s notice how a particular Judge might have
conducted himself inappropriately calling for strict action. Withdrawal of
judicial work from a Judge is an extreme measure that the PROCEDURE
expressly permits. There are other measures too, which could be explored if
Judges are found to deviate from the Code of Conduct. The Judges should,
therefore, act cautiously and exercise their discretion wisely, to evade creation
of a situation where initiating action becomes imperative. The judiciary in
India is characterised by judicial independence; however, judicial
independence signifies flexibility of judicial thought and the freedom to
adjudicate without external and internal pressure, and not unfettered liberty
to act as one might wish. Just as judicial independence is fundamental, so too
is judicial accountability; compromising one compromises the other.
85. Given that the only formal mechanism for addressing judicial misbehaviour
under the Constitution is impeachment by Parliament, it must be remembered
that not all misbehaviour of Judges necessarily rise to the level of “proved
misbehaviour” attracting Articles 217 and 218 read with clauses (4) and (5)
of Article 124. The Constitution’s silence on cases that do not rise to the level
of proven misbehaviour creates a significant structural vulnerability, which has
since been addressed by the PROCEDURE. The PROCEDURE acts as a check on
39
Judges’ unbridled freedom of action and thereby seeks to prevent outcomes
that could be harmful or unjust. Under the present set-up, impeaching the
PROCEDURE or any part thereof may itself be viewed as unreasonable and
unjustified. Expressing our imprimatur of the PROCEDURE, we close our
discussion on the Protection Act without spilling further ink on this issue.
THE NATURE OF INQUIRY UNDER THE PROCEDURE
86. We wish to now dwell on the nature of inquiry that the PROCEDURE
contemplates.
87. The inquiry that is part of the PROCEDURE is designed to be a fact-finding inquiry
as distinguished from a guilt-finding inquiry; and it is, therefore, akin to a
preliminary inquiry that precedes regular disciplinary proceedings against a
delinquent employee.
88. To repeat, Indira Jaisingh (supra) terms the report of the in-house inquiry
as preliminary in nature, ad-hoc and not final.
89. Once the CJI constitutes the Committee, it is required to hold an inquiry into
the allegations contained in the complaint in the manner that the PROCEDURE
ordains. The Committee does have some leeway to devise its own procedure
consistent with the principles of natural justice. Though the Committee is not
required to extend opportunity of cross-examination of the persons who come
before it for giving their versions or opportunity to the Judge under probe to
be represented by a lawyer, the Judge must be called upon to appear and
given opportunity to have his say recorded. After concluding the inquiry, the
Committee may conclude and report to the CJI that (a) there is no substance
in the allegations contained in the complaint, or (b) there is sufficient
40
substance in the allegations contained in the complaint and the misconduct
disclosed is so serious that it calls for initiation of proceedings for removal of
the Judge, or (c) there is substance in the allegations contained in the
complaint but the mis-conduct disclosed is not of such a serious nature as to
call for initiation of proceedings for removal of the Judge.
90. Given its very nature, the Committee by preparing its report and recording its
findings, effectively assists the CJI in arriving at a conclusion as regards the
proposed action in a given case based thereon.
91. Admittedly, this is a case falling within the second situation where the
COMMITTEE has recorded an opinion that there is sufficient substance in the
allegations contained in the letter of the CJI and the misconduct disclosed is
so serious that it calls for initiation of proceedings for removal of the Petitioner.
92. Insofar as the purpose that a preliminary enquiry seeks to serve, there are
multiple decisions of this Court on the point. A Constitution Bench in
Champaklal Chimanlal Shah v. Union of India21 observed that a
preliminary enquiry is usually held to determine whether a prima facie case
for a formal departmental enquiry is made out, and it is very necessary that
the two should not be confused. In Narayan Dattatraya
Ramteerthakhar v. State of Maharashtra22, it has been held that a
preliminary inquiry has nothing to do with the inquiry conducted after the
issue of charge-sheet; once regular inquiry is held under the rules,
the preliminary inquiry loses its importance and whether the preliminary
21
AIR 1964 SC 1854
22
(1997) 1 SCC 299
41
inquiry was held strictly in accordance with law or by observing principles of
natural justice remains of no consequence. Nirmala J. Jhala v. State of
Gujarat23 is one other decision where this Court categorically observed that
the material collected in a preliminary inquiry has no relevance once a regular
inquiry has started and no material obtained during such preliminary enquiry
can be used against the delinquent employee, if such employee had no
occasion to cross-examine the concerned witnesses. All these decisions are
authorities on the point that generally, in the sphere of disciplinary
proceedings against delinquent officers/employees, the concept of a
preliminary inquiry contrasted with an inquiry, which is part of a disciplinary/
departmental enquiry, is different. The raison d’être of a preliminary enquiry
is to determine whether a full-fledged inquiry is at all needed based on the
materials collected in course thereof.
93. That the “In-house Procedure” is not toothless and may very well trigger
initiation of proceedings in the Parliament for removal is acknowledged in
Additional District and Sessions Judge ‘X’ (supra); however, no action for
removal can be taken merely on the basis of the Committee’s report since the
Inquiry Act contemplates a full-fledged inquiry against the concerned Judge.
To that extent, the report of the Committee may not carry much weight. Even
though the report might record that there is sufficient substance in the
allegations, the Inquiry Act does not debar the Judge charged with
misbehaviour to raise an effective defence by presenting such evidence as are
admissible and relevant once the evidence of the witnesses supporting the
23
(2013) 4 SCC 301
42
charge are recorded. Needless to say, if any reliance is placed by the
Committee under the Inquiry Act upon the report of the Committee prepared
under the PROCEDURE, the Judge charged has a right to be informed whereupon
it shall be open to him to raise such points as to non-reliability/non-
acceptability thereof as are available in law. All rights of a Judge charged with
misbehaviour have, necessarily to be traced to the Inquiry Act as well as rules
of fair play so as to facilitate a fair, reasonable and adequate opportunity of
hearing. Nonetheless, the lack of opportunity of a fair hearing in the PROCEDURE
cannot prejudice the concerned Judge given the nature of the inquiry.
94. In line with the previous decisions, we have no hesitation to hold that the
nature of inquiry in the instant case is preliminary, ad-hoc and not final as
well as not violative of any principle of natural justice.
WHY IS THE DECISION IN SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY (SUPRA) NOT
APPLICABLE?
95. Reliance placed by Mr. Sibal on the decision in Sub-Committee on Judicial
Accountability (supra) is, in our considered view, misplaced. That decision
is distinguishable both on facts and on law for the following reasons:
First, the issue which arose in such case was materially different from the one
in the present case. The questions which were required to be answered by this
Court in the said decision have been noted earlier in paragraph 51 (supra).
Anything and everything said in a decision, while answering the questions
43
which might arise, do not form a precedent. It is settled law that a decision isan authority for what it decides. What is of the essence in a decision is its ratio
and not every observation found therein, nor what logically follows from every
observation made in the decision.
Secondly, the Constitution is not a static document. Constitutional Courts are
obligated to interpret the Constitution in the light of evolving standards and
institutional needs. The decision in C. Ravichandran Iyer (supra) marked a
turning point by recognising the necessity of an “In-house Procedure” to
address complaints against Judges. The decision in Sub-Committee on
Judicial Accountability (supra), rendered years earlier, could not have
envisioned the framework developed in C. Ravichandran Iyer (supra) simply
because of the nature of problem that the latter had to solve.
Thirdly, C. Ravichandran Iyer (supra), while being one amongst few
authoritative pronouncements by this Court acknowledging the primacy of the
CJI in preserving the institutional integrity of the judiciary, categorically held
that the CJI may take preliminary steps when credible allegations arise,
without encroaching upon the domain of the Parliament under Article 124(4).
The role assigned to the CJI in this context is entirely distinct and was never
under contemplation in Sub-Committee on Judicial Accountability
(supra).
Fourthly, in C. Ravichandran Iyer (supra), though the concerned judge had
tendered his resignation and demitted office before the judgment was
pronounced, the Court nonetheless proceeded to lay down the legal
44
foundation for an in-house mechanism and setting it as a precedent for all
future cases. The Court’s stance makes it evident that Sub-Committee on
Judicial Accountability (supra) is not applicable to the issue of “In-house
Procedure”.
Fifthly, the Protection Act did not exercise the consideration of the Court in
Sub-Committee on Judicial Accountability (supra).
Sixthly and finally, the evolution of the law post C. Ravichandran Iyer
(supra) has seen consistent affirmation of the in-house mechanism of
discipline by self-regulation by this Court. The PROCEDURE has since received
judicial endorsement in at least three subsequent decisions.
96. The scope of the present matter, to a discerning eye, goes beyond the
principles laid down in Sub-Committee on Judicial Accountability (supra),
which did not have the occasion to address the permissibility or validity of an
in-house mechanism. In any event, we do not see any observation in Sub-
Committee on Judicial Accountability (supra) made by the Court
precluding the judiciary from instituting internal, non-punitive
mechanisms for the purpose of fact-finding and disciplinary introspection by
self-regulation. The constitutional silence on internal mechanisms, in our
opinion, cannot be seen as a prohibition but rather it provided a space for
responsible judicial innovation which has stood the test of time.
97. For all the foregoing reasons, the ruling in Sub-Committee on Judicial
Accountability (supra) cannot be read as a limitation upon the constitutional
45
powers and responsibilities of the CJI, particularly in matters concerning
internal judicial discipline and the preservation of institutional integrity.
98. Mr. Sibal’s contention relying on Sub-Committee on Judicial
Accountability (supra) is, thus, rejected.
ANSWERS
99. Resting on the observations/findings given above, our endeavour to answer
the questions is rendered easy.
ANSWER TO QUESTION (I)
100. The question of entertainability of the writ petition assumes importance,
keeping the conduct of the Petitioner in perspective as distinguished from a
waiver of his rights. It has been noted that not only did the Petitioner not
object to the photographs/video footage being uploaded, he participated in
the inquiry without demur. In his representation dated 6th May, 2025
addressed to the CJI too, there was no whisper of the PROCEDURE fouling any
constitutional provision. Challenge to the constitutionality of paragraph 5(b)
and paragraph 7 (ii) of the PROCEDURE has been raised in this writ petition only
after the CJI had written to the President and the Prime Minister, while
enclosing therewith copy of the REPORT of the COMMITTEE together with the
Petitioner’s response dated 6th May, 2025, as required by the PROCEDURE.
101. We had repeatedly asked Mr. Sibal as to why the Petitioner waited to invoke
the writ jurisdiction. Why did the Petitioner not object to the
photographs/video footage being uploaded? Should the Petitioner not have
approached the Court earlier without submitting to the jurisdiction of the
46
Committee? Once the Petitioner submitted to the jurisdiction, is it not to be
presumed that he did so expecting a favourable outcome and the writ petition
came to be filed only when the outcome was not palatable to him? Having
regard to the caution sounded in paragraph 37 of Additional District and
Sessions Judge ‘X’ (supra), was it not incumbent for the Petitioner to point
out any perceived fault or flaw in the PROCEDURE before submitting to the
jurisdiction of the COMMITTEE? In view of P.D. Dinakaran (1) (supra), does
the Petitioner pass the test of acting bona fide?
102. P.D. Dinakaran (1) (supra) emphasised that the petitioning judge should
not have waited for 10 months to approach the Court when he had objection
regarding inclusion of a member in the committee as a jurist. Mr. Sibal’s
argument that there cannot be a waiver of a Fundamental Right is
unexceptionable. However, what was said in paragraph 81 of the decision is
important. The Petitioner can well be held disentitled to relief based on his
tardy conduct but not, perhaps, on the ground of waiver.
103. Mr. Sibal was, however, heard to submit that if the Petitioner had approached
it earlier, the Court could well have declined interference on the ground that
the writ jurisdiction may be invoked if at all the report of inquiry were adverse
to his interest.
104. We do not consider this answer worthy of acceptance. There are umpteen
decisions of this Court ruling that when the vires of a provision is under
challenge in a writ petition, it forms one of the four exceptions to the self-
imposed restraint, propounded by decisions of this Court, of not entertaining
a writ petition because an alternative remedy is available to the petitioner.
47
Then again, there are good number of decisions of this Court to the effect that
challenge in a writ petition to a show-cause notice for stalling inquiries or
investigative processes is not to be entertained unless the Court is satisfied
that the notice is non-est for total lack of jurisdiction of the notice issuing
authority to inquire into/investigate facts. This Court, in criminal matters,
even entertains challenges to criminal proceedings after police reports
(charge-sheets) have been filed and interfered in fit and proper cases. There
does hardly exist any strait-jacket formula that the Courts would be loath to
interfere or refuse to entertain a writ petition since the proceedings are yet to
draw to a conclusion. Every case coming before the Court for adjudication
would necessarily depend on its own facts and the nature of challenge, i.e.,
whether challenge to the vires of a provision has been raised on prima facie
strong grounds or whether a total lack of jurisdiction is shown to exist in the
notice issuing authority even to inquire into or investigate facts; and, there
can be no rule of universal application that the Courts must invariably decline
interference for no better reason than that the proceedings, out of which the
challenge stems, are pending. It was, therefore, not open to the Petitioner to
believe that the Court would have refused to entertain the writ petition had
he approached earlier, which made him wait.
105. Uploading of the photographs/video footage, according to the Petitioner,
caused him immense harm. Not only did it lower his reputation, he was
convicted in the public eye without even a preliminary inquiry. It could be so.
However, what baffles us is the conduct of the Petitioner to acquiesce to such
uploading, participate in the inquiry without demur, and to question such
48
uploading only after the COMMITTEE submitted its report to the CJI recording
that there was sufficient substance in the allegations. The argument of Mr.
Sibal that such uploading has had the effect of vitiating the enquiry is
untenable. Though uploading of incriminating evidence available against a
Judge under probe in the public domain is not a step which the PROCEDURE
requires and while such uploading may not be considered to be proper, it is
indeed a fait accompli. No benefit can be claimed because of such uploading
of the incriminating evidence at this stage, once in a duly constituted inquiry
findings have been recorded as regards the failures/omissions of the Petitioner
to abide by the Restatement of Values of Judicial Life.
106. Even otherwise, inquiry had been initiated against the Petitioner in terms of
the PROCEDURE which itself has been affirmed by this Court multiple times
before. If indeed any fault were found in the PROCEDURE and questions were to
be raised, the Petitioner ought not to have waited for completion of the fact-
finding inquiry set in motion by the CJI.
107. The conduct of the Petitioner, therefore, does not inspire much confidence for
us to entertain the writ petition.
108. We could have closed the writ petition based on our observation as above.
However, we do not wish to tread the easy route but would rest our
conclusions based on the answers to the other questions too.
ANSWER TO QUESTIONS (II) AND (III)
109. These questions being related, are taken up for consideration together.
110. Mr. Sibal has referred to the decision in Indira Jaising (supra) to urge that
the only source or authority of the CJI to exercise the power of ordering an
49
inquiry is moral and ethical. According to him, the PROCEDURE has no legal
sanction.
111. We are of the firm opinion that the argument is unacceptable for twin reasons,
based on two key tenets.
112. The first reasoning rests on the rulings of this Court in the decisions noted
above affirming the PROCEDURE, with which we are ad idem. Significantly, C.
Ravichandran Iyer (supra) in express terms made it abundantly clear that
the yawning gap between proved misbehaviour and bad conduct inconsistent
with the high office of a Judge of a High Court could be disciplined by self-
regulation through “In-house Procedure” which, in turn, while filling up the
constitutional gap, would yield salutary effect. Even though the respondent
Judge had demitted office as the Chief Justice, but noting the absence of legal
sanction to such procedure, the Court ruling is a revelation that its statements
should form a precedent for the future. Once the dicta in C. Ravichandran
Iyer (supra) constitutes a precedent, it is law declared under Article 141 of
the Constitution. It is judicial legislation that emerged because of the vacuum
in the field of disciplining a Judge who shows signs of delinquency. Additional
District and Sessions Judge ‘X’ (supra) traced the history of the PROCEDURE
and stamped its approval. Merely because in Indira Jaising (supra) the
source of authority was held to be moral and ethical would not assist the
Petitioner. We unhesitatingly hold that might have originated as moral and
ethical authority gradually transformed into legal authority of the CJI in view
of C. Ravichandran Iyer (supra).
50
113. There is one other compelling reason for us to hold that the PROCEDURE could
be seen as having a legal sanction. Sub-section (2) of Section 3 of the
Protection Act has been noticed by us, above. Although sub-section (1) of
Section 3 extends protection to Judges and restrains courts from entertaining
and continuing proceedings – civil or criminal – in respect of any act, thing or
word committed, done or spoken by a Judge when, or in the course of, acting
or purporting to act in the discharge of his official or judicial duty or function,
the same is subject to sub-section (2). In terms thereof, a person who is or
was a Judge is not immune from proceedings being initiated by the Central
Government or the State Government or the Supreme Court or any High Court
or any other authority, as the case may be, under any law for the time being
in force. The action that could lawfully be taken against anyone, who is or was
a Judge, might be civil, criminal, departmental proceedings or otherwise; but,
such an action, has to be at the instance of the named authority only if it is
conferred with such authority by law.
114. That the PROCEDURE has its roots in the law declared by this Court under Article
141 of the Constitution admits of no doubt. Accordingly, we hold that ‘law for
the time being in force’ in sub-section (2) of Section 3 of the Protection Act
would include law laid down by this Court and that the term ‘otherwise’ read
in conjunction with ‘such action’, appearing in the said sub-section, is wide
enough to encompass measures that the PROCEDURE contemplates.
115. The contention that the PROCEDURE lacks legal sanction must, accordingly, fail.
116. Having held so, we are inclined to the view that it is not the law that once the
Committee constituted by the CJI records in its report that the conduct of the
51
Judge under probe warrants initiation of proceedings for his removal and the
CJI, in turn, upon accepting such report furnishes the same together with his
recommendation, if any, to the President and the Prime Minister, that would
invariably in all cases result in initiation of proceedings under Article 124(4)
and (5) of the Constitution (for Supreme Court Judges) and Articles 217 and
218 read with Article 124 (for High Court Judges) and the inquiry under
the Inquiry Act. Report or no report, recommendation or no recommendation,
whatever is the case, the Parliament’s power to initiate proceedings for
removal of a Judge for alleged misbehaviour or incapacity remains unfettered.
Even though there could be a case where good grounds for initiation of
proceedings do exist, the Parliament may in its wisdom elect not to go ahead
to initiate proceedings for removal. Contrarily, even if it is reported by the
Committee under the PROCEDURE that there exists any of the two situations
[para 5(a) or 5(c)] and the CJI, accepting such report, does not make any
recommendation, nothing prevents the Parliament to initiate proceedings for
removal if for reasons aliunde it considers necessary so to do. Notably, if the
Parliament, despite strong indication of a Judge either having indulged in
misbehaviour or suffering from incapacity, does not initiate any proceedings
for removal, no proceeding in a judicial forum would perhaps lie for activating
the Parliament to have such Judge removed from office. The power,
competence, authority and jurisdiction of the Parliament to decide what is in
the best interests of the nation is left untrammelled by the PROCEDURE; hence,
it is fallacious to argue that the PROCEDURE is a parallel and extra-constitutional
mechanism for removal of a Judge.
52
117. Yet again, the in-house inquiry or its report forming part of the PROCEDURE in
itself does not lead to removal of a Judge, unlike the constitutionally ordained
procedure. Thus, the in-house inquiry is not a removal mechanism in the first
place, much less an extra-constitutional mechanism. We reiterate that “a
stitch in time saves nine”.
118. Questions (II) and (III), thus, stand answered.
ANSWER TO QUESTION (IV)
119. More than once, we have observed above how the PROCEDURE found its way
into the system. The PROCEDURE having been discussed and affirmed in multiple
precedents since C. Ravichandran Iyer (supra) and we having expressed
our agreement therewith, the argument that para 5(b) contravenes the
constitutional scheme for removal of Judges by taking recourse to Article 124
is unsustainable. Our observations, while dealing with the relevant topics, do
provide ample reasons why the PROCEDURE or the inquiry contemplated
thereunder has not been considered to be in violation of any provision of the
Constitution, much less Articles 14 and 21 of the Constitution. The procedure
that has been laid down in the PROCEDURE is fair and just which does not
compromise judicial independence either, a basic feature of our Constitution.
A judge by his conduct of being fair and just is supposed to earn for himself
as well as the judiciary the trust and respect of the members of the bar as
well as the litigants and all other stakeholders. If a complaint of misconduct
committed by a Judge is received and if at an inquiry conducted under the
PROCEDURE the allegations against such a Judge are found to have sufficient
substance, he cannot claim any immunity – either by citing abrogation of his
53
Fundamental Rights or breach of the constitutional scheme for removal of a
Judge by initiating proceedings for impeachment – that his conduct is not open
to be commented upon by the Committee or even by the CJI.
120. We see no reason to hold that para 5(b) of the PROCEDURE in any manner
transgresses or is in conflict with any constitutional provision.
ANSWER TO QUESTION (V)
121. We have noticed each and every stage through which the proceedings against
the Petitioner have passed. Right from the constitution of the COMMITTEE till
intimations were given to the President and the Prime Minister by the CJI – we
have neither been shown nor is it a fact proved that either the CJI constituted
COMMITTEE or the CJI acted in any manner in deviation of the PROCEDURE, except
when the photographs/video footage were uploaded on the website of the
Supreme Court. We wish to observe here that placing incriminating evidence
available against a Judge under probe in the public domain is not a measure
provided in the PROCEDURE, either expressly or by implication. Indira Jaising
(supra) holds in clear terms that the inquiry under the PROCEDURE is for the
information and satisfaction of the CJI and the report of inquiry is confidential
and, therefore, such report cannot be made public. That being the clear
position, we are inclined to hold the entire process under the PROCEDURE too
as confidential having ascertainment of truth as one of its objectives. The
demands of being fair and transparent, in such cases, have to yield to the
confidential nature of the process. Thus, uploading of the photographs/video
footage on the website of this Court cannot be viewed as a necessary
requirement of the “In-house Procedure” and, thus, approved. But, then
54
again, nothing really turns on the uploading of the photographs/video footage
since the Petitioner, as observed above, did not have any grievance in relation
thereto which is obvious from his failure to question such uploading at an
appropriate time thereby allowing a situation to grow where the Court is faced
with a fait accompli. Even in this writ petition, no relief is claimed in respect
of such uploading.
122. Now that nothing is pending at the end of the Supreme Court and/or the CJI,
the Petitioner may exercise his rights in accordance with law as and when an
appropriate occasion arises.
Answer to Question (VI)
123. The CJI, as the leader of the judiciary, apart from his various other duties
owes a duty to the people of the country to keep the justice delivery system
pure, clean and unpolluted. It is unreasonable to even think that despite an
incident of the present nature, the CJI would wait for the Parliament to take
action. As observed before, it is up to the Parliament whether or not to activate
Article 124. Left to him, the CJI upon being informed of a Judge’s remissness
does have the authority – moral, ethical and legal – to take such necessary
action as is warranted to keep institutional integrity intact. Any adverse impact
on the credibility of the institution could prove dear. It is keeping in view such
concerns and the legal position of the President being the ultimate appointing
authority of Judges and the Prime Minister being the head of the Council of
Ministers, upon whose aid and advice the President acts under our
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Constitution, coupled with receipt of complaints from the office of the
President that we find the provision in paragraph 7(ii) of the PROCEDURE
requiring the CJI to write to the President and the Prime Minister along with
the report of the Committee to be quite in order, legal and valid. We repat,
the office of the CJI is not to be regarded as a post office that the report should
only be routed through the CJI without his observations.
124. We say again, we are unaware like the Petitioner of what the CJI remarked
while forwarding the REPORT of the COMMITTEE and the Petitioner’s response
dated 6th May, 2025 to the President and the Prime Minister. However, if
indeed, the CJI has reiterated the finding of the Committee as contained in
the REPORT and recommended initiation of proceedings for removal of the
Petitioner from office, such a recommendation cannot be impeached on any
valid and legal ground. Notwithstanding that the recommendation of the CJI
carries much weight, one has to realize that the intimation given by the CJI,
under the PROCEDURE, is for the eyes of the President and the Prime Minister
alone and not anyone else.
125. Therefore, we see no reason to hold paragraph 7(ii) of the PROCEDURE as
infringing either any provision of the Constitution or the concept of separation
of powers.
126. Before we conclude, one other contention is left to be dealt with which was
advanced by Mr. Rohatgi. It could be true that the then CJI granted an
opportunity of hearing to the Judge of the Calcutta High Court under probe.
However, it must be realised that it was a step going beyond the PROCEDURE.
Here, the CJI has scrupulously followed the PROCEDURE which does not
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envisage a hearing to be given to the Judge under probe after he has
expressed his inability to resign or voluntarily retire. Even though a hearing
‘could have been given’, it cannot be equated with ‘should have been given’
in the absence of any such express obligation in the PROCEDURE. The
contention, thus, fails to impress us.
CONCLUSION
127. For the foregoing reasons, no interference is called for. The writ petition stands
dismissed.
………………………………………J.
(DIPANKAR DATTA)
……………….………………………J.
(AUGUSTINE GEORGE MASIH)
NEW DELHI;
AUGUST 07, 2025.
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