The gavel falls, but the embers glow

Recently, the hallowed halls of the Supreme Court echoed with a verdict that all but seals the fate of an anguished High Court judge.

On August 7, 2025, a Bench of Justices Dipankar Datta and Augustine George Masih delivered a judgment in XXX v. Union of India & Ors that fundamentally reshapes the landscape of judicial accountability in India.

Upholding the controversial "in-house procedure" for investigating judicial misconduct, the Court navigated a treacherous path between preserving judicial independence and enforcing institutional integrity. The judgment, however, leaves critical questions smoldering, demanding closer scrutiny.

The case originated in scandal. While serving as a Delhi High Court Judge, the petitioner was away when a fire erupted in his official bungalow's storeroom. Firefighters discovered burnt currency notes, triggering allegations of misconduct violating the "Restatement of Values of Judicial Life". Acting swiftly under the Supreme Court's 1999 in-house procedure, the Chief Justice of India (CJI) constituted a three-member committee. The committee, after an inquiry including site visits and witness statements, found "sufficient substance" in the allegations, deeming the misconduct serious enough to warrant removal proceedings.

The CJI, acting under paragraph 7(ii) of the Procedure, forwarded this report, along with the judge's response refusing resignation, to the President and Prime Minister. The petitioner challenged the constitutional validity of paragraphs 5(b) and 7(ii) of the in-house procedure itself, arguing they created an unconstitutional parallel mechanism usurping Parliament's exclusive impeachment power under Articles 124(4), 124(5), 217(1)(b) and 218 of the Constitution.

Led by Senior Advocate Kapil Sibal, the petitioner mounted a formidable challenge:

1. Encroachment on Parliamentary domain: Sibal argued that the Constitution provided only one path for removing a High Court Judge – parliamentary impeachment following an inquiry under the Judges (Inquiry) Act, 1968. Any other mechanism, like the committee opining on "serious misconduct warranting removal" and the CJI triggering the process, was ultra vires. He heavily relied on Sub-Committee on Judicial Accountability v. Union of India (1991), where a Constitution Bench emphasised that no parallel process discussing a judge's conduct could exist outside the strict impeachment framework, especially before "proved misbehaviour".

2. Violation of due process (Articles 14 & 21): The in-house procedure - lacking formal charge-sheets, cross-examination, strict rules of evidence and legal representation - was condemned as arbitrary and violative of Article 14. Furthermore, the pre-emptive uploading of incriminating photos/video footage by the Supreme Court, coupled with the Committee's publicised adverse findings, were argued to have "convicted" the petitioner in the public eye, destroying his reputation and livelihood without due process, violating Article 21.

3. Separation of powers: Sibal contended that the CJI, lacking disciplinary control over High Court Judges, possessed no constitutional authority to make recommendations effectively initiating the political impeachment process. Such advice from the head of the judiciary would inevitably prejudice Parliament.

Justices Datta and Masih, in a meticulously structured 127-paragraph judgment, rejected these arguments, upholding the in-house procedure as constitutionally permissible and necessary:

The Court unequivocally acknowledged the "yawning gap" identified in C Ravichandran Iyer v. Justice AM Bhattacharjee (1995) – that the Constitution provided no mechanism for addressing judicial misconduct falling short of impeachable "proved misbehaviour". The in-house procedure, devised by the Supreme Court Full Court in 1999, precisely to fill this void, was not a removal mechanism but a preliminary, fact-finding one aimed at "self-regulation"; and preserving institutional credibility.

Countering the "moral authority" description in Indira Jaising v. Supreme Court of India (2003), the Court held Ravichandran Iyer's endorsement of an in-house mechanism constituted "law declared" under Article 141 of the Constitution. Crucially, it found statutory footing in Section 3(2) of the Judges (Protection) Act, 1985. This provision allows the Supreme Court (among other authorities) to take "action... or otherwise" against a Jjudge under "any law for the time being in force." The Court expansively interpreted "law" to include judicial precedent (Article 141) and "otherwise" to encompass the disciplinary measures under the in-house procedure.

The Court repeatedly emphasised that the committee's inquiry under the procedure is "preliminary"; "ad-hoc" "not final" and solely for the CJI's "information and satisfaction". It is a "fact-finding" exercise, distinct from the guilt-finding inquiry under the Judges (Inquiry) Act. While principles of natural justice apply (right to be heard), formal adversarial procedures like cross-examination are excluded by design.

The Court also defended each of the CJI's actions through the process, including:

Forwarding the report: This was characterised not as "triggering impeachment" but as explaining the withdrawal of judicial work (an administrative step within the CJI's remit under the procedure) to the President (the appointing authority) and Prime Minister.

Making recommendations: The CJI was deemed not merely a "post office". As the head of the institution bearing "significant moral responsibility", the CJI has the authority, based on the committee's findings, to endorse them while forwarding the report. This does not bind Parliament, which retains absolute discretion on whether to initiate impeachment.

President/PM as recipients: The Court noted the President is "not an outsider" to the judiciary (being the appointing authority) and often the source of complaints triggering the procedure. Forwarding findings to the PM (head of the Council of Ministers advising the President) was thus logical.

Next, the Court distinguished Sub-Committee on Judicial Accountability (1991) on multiple grounds: it dealt with different issues (lapse of motion upon dissolution of Lok Sabha, justiciability); predated the evolution of the in-house procedure post-Ravichandran Iyer (1995); and crucially, did not consider the Judges (Protection) Act, 1985. The Constitution's silence on internal mechanisms was seen as permitting, not prohibiting, judicial innovation.

While acknowledging no waiver of fundamental rights, the Court strongly criticised the petitioner's conduct in participating in the inquiry without demur, failing to challenge the procedure's vires or the evidence uploaded before the adverse report and only approaching the Court after the CJI acted under para 7(ii). This "tardy conduct" and submission to jurisdiction disentitled him to relief, the Court held.

While unequivocally stating that uploading incriminating material was "not a measure provided in the procedure" and violated its confidential nature, the Court held that the petitioner's failure to challenge it promptly rendered it a fait accompli that didn't vitiate the core inquiry.

The judgment is a robust affirmation of the judiciary's autonomy in self-regulation. Its strengths lie in:

Addressing a real vacuum: It correctly identifies the impracticality of relying solely on the cumbersome, politically fraught impeachment process for all misconduct.

Grounding in precedent and statute: The linkage to Ravichandran Iyer and the innovative, though contestable, reliance on the Judges (Protection) Act provides a legal veneer beyond mere "moral authority".

Clarifying the procedure's scope: Emphasising its preliminary, non-punitive nature mitigates concerns about it replacing impeachment.

However, significant jurisprudential and practical tensions remain:

1. The legal sanction mirage: Relying on Article 141 (law declared by the Supreme Court) to validate a procedure created by the Supreme Court for disciplining judges borders on self-empowerment. Stretching the Judges (Protection) Act's "otherwise" clause to cover this is interpretively adventurous. Does this open the door for the Court to create other self-regulatory mechanisms with limited oversight?

2. Due process dilution: While labeled "preliminary", the consequences of an adverse committee report – public withdrawal of work, forwarding to highest constitutional offices implying guilt, irreparable reputational damage – are profoundly punitive. The denial of core procedural safeguards (cross-examination, legal representation, strict evidence rules) under the procedure, upheld by the Court, sits uneasily with Article 14 and 21 guarantees, especially for a constitutional functionary.

3. Separation of powers: A blurred line? The Court insists that the procedure doesn't trigger impeachment and Parliament remains sovereign. Yet, the CJI's "recommendation" (based on a finding of "serious misconduct warranting removal") sent to the political executive is undeniably the functional equivalent of initiating the process. Can Parliament realistically ignore such a recommendation from the CJI? The distinction between "explaining withdrawal of work" and "recommending removal" feels semantic in practice.

4. Confidentiality eroded: The Court's condemnation of uploading evidence (Para 121) is welcome, but its refusal to grant relief due to the petitioner's delay offers little deterrence against future breaches of confidentiality, a cornerstone repeatedly stressed in Indira Jaising and the procedure itself.

5. The waiver paradox: While procedurally sound, the heavy reliance on the petitioner's "tardy conduct" risks discouraging judges from promptly challenging procedural irregularities within the in-house process for fear of appearing obstructive, potentially trapping them in unfair procedures.

XXX v. UoI cements the in-house procedure as a central pillar of judicial discipline. However, it does so without resolving fundamental tensions:

Legislative vacuum persists: The judgment highlights, but does not remedy, the absence of a statutory framework for mid-level judicial misconduct. Parliament, as empowered by Article 124(5), remains inert. Will this ruling spur legislative action to create a more transparent, rights-respecting mechanism, or entrench the status quo?

Credibility vs. fairness: The tension between protecting the judiciary's image (through confidential, swift in-house action) and guaranteeing fair process for the accused judge remains acute. The Court prioritised institutional credibility; future cases will test whether sufficient safeguards exist within the procedure to prevent misuse or unfairness.

The shadow of politics: By requiring the CJI to send findings to the PM/President, the procedure, despite the Court's assurances, inevitably intertwines the process with the political executive. How this plays out in highly politicised cases remains a concern.

Evolution or entrenchment? Is this the final word? Potential challenges remain: the scope of "otherwise" in the Judges (Protection) Act, the adequacy of procedural safeguards under Article 14/21 scrutiny in a future case with different facts, or a direct challenge if Parliament ever enacts a conflicting disciplinary law.

The Supreme Court, in XXX v. UoI, has vigorously defended its institutional mechanism for self-cleansing. It has plugged the "yawning gap" identified decades ago with a tool of its own forging, finding legal justification where others saw only convention. The judgment is a testament to the Court's view of itself as the ultimate guardian of judicial integrity. Yet, in fortifying the ramparts of institutional credibility, the Court has arguably left the due process rights of the individual judge within that institution more vulnerable.

The embers of this case – concerning fairness, power and the delicate balance between independence and accountability – will continue to glow, demanding vigilant juristic attention. The robe of judicial probity has been mended, but the seams, strained by this very judgment, remain visible.

Shrey Brahmbatt is a Delhi-based lawyer.