XXX vs The Union of India & Others

Held: Conduct of the petitioner does not inspire much confidence to entertain the writ petition – Petitioner did not object to the photographs/video footage being uploaded, he participated in the inquiry without demur – Procedure could be seen as having a legal sanction – It is fallacious to argue that the Procedure is a parallel and extra-constitutional mechanism for removal of a Judge – Inhouse 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 – Argument that para 5(b) contravenes the constitutional scheme for removal of Judges by taking recourse to Art.124 is unsustainable – No reason to hold that para 5(b) of the Procedure in any manner transgresses or is in conflict with any constitutional provision – Right from the constitution of the Committee till intimations were given to the President and the Prime Minister by the CJI-its 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 – As regards the requirement of para 7(ii) of the Procedure obliging the CJI to forward the report of the Committee to the President and the Prime Minister, 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 – Constitution of India – Art.14, 32, 121, 124, 211, 217, 218, 141 – Judges (Inquiry) Act, 1968. [Paras 100-125]

Constitution of India – Art.32 – Maintainability/Entertainability of the writ petition considering conduct of petitioner-High Court Judge as distinguished from waiver of rights: Held: Challenge to the constitutionality of paragraph 5(b) and 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 – According to the petitioner, uploading of the photographs/video footage, caused him immense harm, not only did it lower his reputation, he was convicted in the public eye without even a preliminary inquiry – However, 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, baffles this Court – Submission 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 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 – 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 – Conduct of the Petitioner, does not inspire much confidence to entertain the writ petition. [Paras 100, 105-107]

Judges (Protection) Act, 1985 – s.3(2) – “In-house Procedure” – Paras 5(b), 7(ii) – Does the In-house Procedure have legal sanction – Whether 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:

Held: Procedure could be seen as having a legal sanction – Procedure has its roots in the law declared by this Court u/Art.141 of the Constitution – ‘Law for the time being in force’ in subsection (2) of s.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 – 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 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 u/Art.124(4) and (5) of the Constitution (for Supreme Court Judges) and Arts.217 and 218 read with Art.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 – 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 – 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. [Paras 110-117]

Judges (Protection) Act, 1985 – s.3(2) – “In-house Procedure” – Paras 5(b), 7(ii) – Paragraph 5(b) of the Procedure, if foul clauses (4) and (5) of Art.124 r/w. Art.217 and 218 of the Constitution or abrogate any Fundamental Right of a Judge of a High Court:

Held: Submission that para 5(b) contravenes the constitutional scheme for removal of Judges by taking recourse to Art.124 is unsustainable – 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 – 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 – No reason to hold that para 5(b) of the Procedure in any manner transgresses or is in conflict with any constitutional provision. [Paras 119, 120]

Judges (Protection) Act, 1985 – s.3(2) – In-house Procedure – Whether CJI/Committee acted in terms of the Procedure or in deviation thereof:

Held: Right from the constitution of the Committee till intimations were given to the President and the Prime Minister by the CJI, it has 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 – 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 – Inquiry under the Procedure is for the information and satisfaction of the CJI and the report of inquiry is confidential and, thus, such report cannot be made public – Entire process under the Procedure is confidential having ascertainment of truth as one of its objectives – 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”, thus, approved – However, nothing really turns on the uploading of the photographs/video footage since the Petitioner, 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. [Para 121]

Judges (Protection) Act, 1985 – s.3(2) – In-house Procedure – 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 – Constitutionality:

Held: 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 – It is up to the Parliament whether or not to activate Art.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 – 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 the Constitution, coupled with receipt of complaints from the office of the President, the provision in para 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 – Office of the CJI not to be regarded as a post office that the report should only be routed through the CJI without his observations – This Court is 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 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 – Thus, 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. [Paras 123-125] Judges (Protection) Act, 1985 – s.3(2) – In-house Procedure” devised by the Supreme Court in its Full Court meeting dated 15th December, 1999 through administrative resolution to deal with complaints of misconduct or incapacity against sitting Judges, both of the High Courts and the Supreme Court – Genesis and contents of the in-house Procedure – Discussed. [Paras 41-47]

Judges (Protection) Act, 1985 – s.3(2) vis-à-vis In-house Procedure – Applicability:

Held: Protection Act does not offend the constitutional scheme, 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 – 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 – 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 – 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 – 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 Arts. 217 and 218 r/w. clauses (4) and (5) of Art. 124 – 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 – Procedure acts as a check on 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. [Paras 71-85]

Judges (Protection) Act, 1985 – s.3(2) – In-house Procedure – Nature of inquiry:

Held: Inquiry that is part of the In-house Procedure is designed to be a fact-finding inquiry as distinguished from guilt-finding inquiry, thus, akin to a preliminary inquiry that precedes regular disciplinary proceedings against a delinquent employee – 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 – 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, Committee may conclude and report to the CJI as regards the substance in the allegations contained in the complaint – 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 – Instant case falls within the second situation where 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-High Court Judge – Thus, the nature of inquiry is preliminary, ad-hoc and not final as well as not violative of any principle of natural justice. [Paras 88-91, 94] Judges (Inquiry) Act, 1968 – Provisions relatable to removal of a Judge of a High Court from office – Process of impeachment of a Judge – Discussed. [Paras 28-40]

Judiciary – Chief Justice of India – Role of the CJI – Explanation: Held: 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 country functions in a transparent, efficient and constitutionally appropriate manner – Although the CJI is the head of the institution, he too is not above the law which is supreme; hence, utmost care to be taken to ensure that any action of the CJI is not in deviation of the In-house Procedure which permits the in-house inquiry to be undertaken. [Paras 61, 69]