SC on In-House Procedure for inquiry in judicial misconduct
Supreme Court: This writ petition was filed by a sitting Judge of Allahabad High Court seeking declaration of 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 CJI to intimate the same to the President and the Prime Minister for initiating proceedings for removal and other consequential action, as unconstitutional and ultra vires; and set aside the Final Report dated 03-05-2025 submitted by the Committee, and all consequential actions taken pursuant to the same.
The Division Bench of Dipankar Datta* and A.G. Masih, JJ., dismissed the writ petition and opined that 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. The Court further held that 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.
The Court found 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 in order, legal and valid.
Background and Reliefs sought:
While the Petitioner was a Judge of the Delhi High Court, there was an incident of fire at a storeroom 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 storeroom. Consequently, this matter fell for scrutiny before the “In-house Procedure” devised by the Supreme Court in its Full Court meeting dated 15-12-1999.
The Chief Justice of the Delhi High Court vide letter dated 21-3-2025 sought a response from the Petitioner and on 22-3-2025, the Petitioner submitted his response in his defence. Upon receipt of the response, the same was considered. Inter alia, on 22-3-2025, a 3-member Committee was constituted by the Chief Justice of India.
On 24-3-2025, the Supreme Court Collegium recommended the Petitioner’s repatriation to his parent High Court. The Committee inspected the fire ravaged storeroom. 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 report dated 3-5-2025 was submitted. On the basis of appreciation of the materials collected in course of the inquiry, the Committee recorded in the report that it found sufficient substance in the allegations raised. It was recorded that misconduct found proved was serious enough to call for initiation of proceedings for removal of the Petitioner from his office. Vide letter dated 4-5-2025, the CJI gave the Petitioner the option to resign or to seek voluntary retirement. Petitioner sought reconsideration of the letter dated 4-5-2025, more time to submit a written representation upon thorough review of the Report and several other prayers. However, the same was not granted to the Petitioner.
A further press release by the Supreme Court on 8-5-2025 came to be issued recording that in terms of the Procedure, the CJI had written to the President and Prime Minister and forwarded the Committee’s Report and the Petitioner’s response. However, contents of the CJI’s letter have not been released in public domain.
Thereafter, the Petitioner filed this writ petition before the Supreme Court seeking Issuance an appropriate writ, order, or direction declaring the intimation by the CJI to the President and the Prime Minister (as referred to in the Press Release dated 08-05-2025) for initiation of action for removal as unconstitutional and ultra vires the Articles 124 and 218 and quash the same along with afore-stated reliefs.
Issues Framed:
Perusing the petition and the contentions advanced, the Court formulated the following substantial questions of law:
- Should the writ petition be entertained at all having regard to the conduct of the Petitioner?
- Does the Procedure have legal sanction?
- 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?
- 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?
- Did the CJI/the Committee constituted by the CJI act in terms of the PROCEDURE or in deviation thereof?
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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?
Court’s Assessment:
Considering the matter, the Court delved into Articles 217 and 218 read with Article 124 of the Constitution relating to removal of a Judge of a High Court from office. The Court pointed out that 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, 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. “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/nonjudicial/ official duties”.
The Court then delved into the contents of the In-House Procedure and pointed out that it 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. 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. 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 adopted the Procedure.
The Court noted that the Petitioner has challenged the CJI’s alleged recommendation for initiation of proceedings for removal 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. 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.
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. 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.
The Court emphasised 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.
Perusing Section 3(2) of the Judges Protections Act, in respect to the Procedure, the Court noted that 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. Emphasising on the word ‘otherwise’ in the Section, the Court said that The Procedure having provisions for an in-house inquiry, 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. precedents on this point.
The Court held that that inclusion of the Central Government or the State Government or such other authority in Section 3(2) 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.
The Court opined that 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.
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, the Court held 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.
The Court stated that 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”.
The 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.
Considering the nature of inquiry under the Procedure, the Court said that 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.
Elaborating, the Court explained that once the CJI constitutes the Committee, it is required to hold an inquiry into the allegations contained in the complaint in the manner ordained by the Procedure. 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 misconduct disclosed is not of such a serious nature as to call for initiation of proceedings for removal of the Judge. The Court said that admittedly the instant case falls under afore-stated situation (b).
The Court held 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.
The Court further opined that the constitutional silence on internal mechanisms, cannot be seen as a prohibition but rather it provided a space for responsible judicial innovation which has stood the test of time.
Decision:
The Court noted that 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.
The Court said that 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.
The Court further stated that 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.
The Court held that “In-house Procedure” could be seen as having a legal sanction and has its roots in the law declared by the Court under Article 141 of the Constitution. The Court held that ‘law for the time being in force’ in Section 3(2) of the Judges Protection Act would include law laid down by the 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.
The Court stated that it is fallacious to argue that the Procedure is a parallel and extra-constitutional mechanism for removal of a Judge.
The process 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.
The Court pointed out that Right from the constitution of the Committee till intimations were given to the President and the Prime Minister by the CJI it was neither shown nor is it was 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. However, uploading of the photographs/video footage on the website of the Court cannot be viewed as a necessary requirement of the “In-house Procedure” and thus were approved.
[XXX v. Union of India, WRIT PETITION (CIVIL) No. 699 OF 2025, decided on 7-8-2025]
*Judgment by Justice Dipankar Datta
Advocates who appeared in this case:
For Petitioner(s): Mr. Kapil Sibal, Sr. Adv. Mr. Mukul Rohatgi, Sr. Adv. Mr. Rakesh Dwivedi, Sr. Adv. Mr. Siddharth Luthra, Sr. Adv. Mr. Siddharth Aggarwal, Sr. Adv. Mr. Jayant Mehta, Sr. Adv. Ms. Stuti Gujral, Adv. Ms. Manisha Singh, Adv. Mr. Vaibhav Niti, AOR Mr. George Pothan Poothicote, Adv. Ms. Jyoti Singh, Adv. Mr. Anurag Jain, Adv. Mr. Keshav Saigal, Adv. Mr. Vishwajeet Singh, Adv. Mr. Prakarsh Kumar, Adv. Mr. Tasnimul Hassan, Adv.