XXX versus THE UNION OF INDIA & OTHERS

Summary

A High Court Judge, found by an in-house committee to have committed misconduct serious enough to warrant removal after burnt currency notes were discovered at his official residence, challenged paragraphs 5(b) and 7(ii) of the Supreme Court's In-house Procedure as ultra vires Articles 124 and 218. The Supreme Court dismissed the writ petition, holding that the Procedure has legal sanction through the law declared in C. Ravichandran Iyer under Article 141 and Section 3(2) of the Judges (Protection) Act, 1985, that it is a preliminary fact-finding mechanism and not a parallel removal mechanism, and that the Chief Justice of India may forward the committee's report with his own views to the President and the Prime Minister.

Issues

1. Whether the writ petition should be entertained having regard to the petitioner's conduct in participating in the inquiry without demur and challenging the Procedure only after an adverse report.
2. Whether the In-house Procedure adopted by the Full Court of the Supreme Court on 15.12.1999 has legal sanction.
3. Whether an in-house inquiry and report that may be unfavourable to the Judge is a parallel, extra-constitutional mechanism for removal.
4. Whether paragraph 5(b) of the Procedure offends clauses (4) and (5) of Article 124 read with Articles 217 and 218, or Articles 14 and 21 of the Constitution.
5. Whether the CJI and the committee acted in deviation of the Procedure, including by uploading photographs and video footage on the Supreme Court website.
6. Whether paragraph 7(ii), requiring the CJI to forward the committee's report to the President and the Prime Minister, is unconstitutional.
7. Whether the petitioner was entitled to a personal hearing by the CJI before the intimation to the President and the Prime Minister.

Provisions considered

• Article 124(4) and (5) read with Articles 217(1) proviso (b) and 218, Constitution of IndiaThese are the only provisions for removal of a High Court Judge, on proved misbehaviour or incapacity, and the Judges (Inquiry) Act, 1968 is the law under clause (5); the Court held that the in-house inquiry does not itself lead to removal and leaves Parliament's power to initiate removal proceedings wholly unfettered, so the Procedure does not run parallel to this scheme. (¶¶ 28, 29, 30, 31, 34, 116, 117)
• Articles 121 and 211, Constitution of IndiaThese bar discussion in Parliament and State Legislatures of a Judge's conduct except on a motion for an address; noted as part of the constitutional scheme and the basis of the ruling in Sub-Committee on Judicial Accountability, which the Court distinguished. (¶¶ 33, 34, 53)
• Article 141, Constitution of IndiaThe dicta in C. Ravichandran Iyer, expressly laid down as a precedent, is law declared under Article 141; the 1999 Full Court resolution framed on that decision therefore has full legal sanction, the originally moral and ethical authority of the CJI having transformed into legal authority. (¶¶ 79, 80, 112, 114)
• Sections 2 and 3(2), Judges (Protection) Act, 1985Section 3(2) saves the power of the Central Government, State Government, Supreme Court, High Court or any other authority to take action, by civil, criminal or departmental proceedings 'or otherwise', against a Judge under any law for the time being in force; the Court held that 'law for the time being in force' includes law declared by the Supreme Court and that 'otherwise' is wide enough to cover the fact-finding inquiry under the Procedure. The inclusion of the Governments is explained by the expansive definition of 'Judge' in Section 2 covering tribunal and quasi-judicial adjudicators. (¶¶ 70, 72, 76, 77, 79, 81, 82, 113, 114)
• Procedure for investigation of misbehaviour or incapacity, Judges (Inquiry) Act, 1968The Inquiry Act provides a full inquiry with framed charges, supporting material, cross-examination and civil court powers; the Court held that no removal action can be taken merely on the in-house committee's report, that the Judge retains all rights under the Inquiry Act, and that if the in-house report is relied upon in that inquiry the Judge must be informed and may contest it. (¶¶ 31, 32, 68, 93)
• Articles 14, 21 and 32, Constitution of IndiaThe petition was filed under Article 32 alleging breach of Articles 14 and 21; the Court held the Procedure to be fair and just, not in violation of any constitutional provision including Articles 14 and 21, and not compromising judicial independence. (¶¶ 1, 119, 120)

Held

• The petitioner's conduct did not inspire confidence to entertain the petition: he did not object to uploading of the photographs and video footage, participated in the inquiry without demur, raised no constitutional objection in his representation to the CJI, and challenged the Procedure only after the CJI had written to the President and the Prime Minister. Following P.D. Dinakaran (1), a petitioner may be disentitled to relief on account of tardy conduct, though not on the ground of waiver of a Fundamental Right. (¶¶ 100, 101, 102, 105, 106, 107)
• There is no rule that a court must decline to entertain a writ petition merely because the proceedings out of which the challenge arises are pending; a challenge to the vires of a provision is one of the exceptions to the alternative-remedy restraint, so the petitioner could not justify his delay by assuming an earlier petition would have been rejected. (¶ 104)
• The In-house Procedure has legal sanction on two grounds: the law declared in C. Ravichandran Iyer under Article 141, on which the 1999 Full Court resolution was framed, and Section 3(2) of the Judges (Protection) Act, 1985, whose expressions 'law for the time being in force' and 'otherwise' encompass the measures the Procedure contemplates. (¶¶ 79, 80, 112, 113, 114, 115)
• The in-house inquiry is a preliminary, ad hoc and non-final fact-finding inquiry, akin to a preliminary inquiry preceding regular disciplinary proceedings; it is not a guilt-finding inquiry, is not violative of natural justice, and the absence of cross-examination or legal representation cannot prejudice the Judge given its nature. (¶¶ 87, 88, 89, 92, 93, 94)
• The Procedure is not a parallel or extra-constitutional mechanism for removal: report or no report, recommendation or no recommendation, Parliament's power to initiate or decline to initiate removal proceedings remains unfettered, and the in-house inquiry by itself never leads to removal. (¶¶ 116, 117, 118)
• Paragraph 5(b) of the Procedure does not transgress or conflict with any constitutional provision; a Judge against whom allegations are found to have sufficient substance cannot claim immunity from comment by the committee or the CJI by invoking his Fundamental Rights or the constitutional scheme of removal. (¶¶ 119, 120)
• The CJI is not a mere post office between the committee and the President and the Prime Minister; where the committee finds serious misconduct the CJI is obliged to forward the report and may, in a fit case, endorse its findings and give his own views. The report is forwarded to indicate why judicial work has been withdrawn, and the intimation is for the eyes of the President and the Prime Minister alone; paragraph 7(ii) is legal and valid and does not offend separation of powers. (¶¶ 63, 64, 67, 68, 123, 124, 125)
• Neither the CJI nor the committee deviated from the Procedure, except that uploading the photographs and video footage on the Supreme Court website is not a step the Procedure requires; the entire in-house process is confidential and such uploading cannot be approved, but nothing turned on it since the petitioner never questioned it in time and claimed no relief in respect of it. (¶¶ 105, 121)
• Sub-Committee on Judicial Accountability does not govern the validity of the In-house Procedure: it decided different questions, preceded C. Ravichandran Iyer, did not consider the Protection Act, and contains no observation precluding internal non-punitive fact-finding mechanisms; constitutional silence on such mechanisms is a space for responsible judicial innovation, not a prohibition. (¶¶ 95, 96, 97, 98)
• The Procedure does not require the CJI to give the Judge a personal hearing after he declines to resign or retire; that a previous CJI gave such a hearing in another case was a step beyond the Procedure, and 'could have been given' is not 'should have been given'. (¶ 126)

Result

Writ petition dismissed; no interference with the committee's report or the CJI's intimation to the President and the Prime Minister; the petitioner left free to exercise his rights in accordance with law as and when an appropriate occasion arises.