XXX v. The Union of India & Others

p. 1985

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 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 inquiry was held strictly in accordance with law or by observing principles of natural justice remains of no consequence.

21 AIR 1964 SC 1854 22 (1997) 1 SCC 299

p. 1986

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 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.

23 (2013) 4 SCC 301

p. 1987

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 which might arise, do not form a precedent. It is settled law that a decision is an 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 foundation for an in-house mechanism and setting it as a precedent for all future cases. The Court’s stance makes it

p. 1988

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 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

p. 1989

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 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

p. 1990

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. 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 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

p. 1991

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 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

p. 1992

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).

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 Judge under probe warrants initiation of proceedings for his removal and the CJI, in turn, upon accepting

p. 1993

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.

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

p. 1994

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 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

p. 1995

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 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 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

p. 1996

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 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.

Result of the case: Writ Petition dismissed.