# JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES INQUIRY COMMITIEE & ORS

- **Citation:** [2011] 10 S.C.R. 1064
- **Court:** Supreme Court of India
- **Decided:** 2011-07-05
- **Bench:** G.S. Singhvi, Chandramauli Kr. Prasad
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/justice-p-d-dinakaran-v-hon-ble-judges-inquiry-commitiee-ors-27107
- **Pages:** 83

## Headnote

Constitution of India, 1950 - Article 217 rlw Article 124 -
C Constitution of Inquiry Committee against High Court Judge
- Inclusion of respondent no.3-advocate in the Committee -
Challenge to, on ground of bias - Fifty members of the Rajya
Sabha submitted notice of motion for removal of the writ
petitioner, who was then posted as Chief Justice of the
D Karnataka High Court, under Article 217 read with Article
124(4) of the Constitution -
Chairman of Rajya Sabha
constituted Inquiry Committee comprising of a Supreme Court
Judge, Chief Justice of High Court and respondent no. 3advocate - Constitution of the Committee notified in the
E Official Gazette dated 15-1-2010 - Committee issued notice
requiring the Petitioner to appear to answer the charges -
Petitioner raised objection against inclusion of respondent
No.3- He contended that respondent no.3 was biased against
him on grounds that in a seminar organized by the Bar
F Association of India on 28-11-2009, respondent No.3 had
made a speech opposing his elevation to Supreme Court and
had also drafted resolution for the said purpose - Held: The
petitioner raised the plea of bias only after receiving notice
dated 16-3-2011 though he could have done so immediately
G after publication of notification dated 15-1-2010 - Significantly
respondent No.3 had taken part in the said seminar as VicePresident of the Bar Association - After the seminar,
respondent No.3 is not shown to have done anything which
may give slightest impression to any person of reasonable
H
1064
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1065
. INQUIRY COMMITIEE & ORS.
prudence ·that he was ill-disposed against the petitioner -
A
Rather, as per the petitioner's own statement, he had met
respondent No.3 at the latter's residence on 6-12-2009 and
was convinced that the latter had nothing against him - The
facts of the case lead to an irresistible inference that the
petitioner had waived his right to object to the appointment of B
respondent No.3 as member of the Committee - The belated
raising of objection against inclusion of respondent No.3 in
the Committee u/s.3(2) appears to be a calculated move on
the petitioner's part - Petitioner is an intelligent person and
knows that in terms of Rule 9(2)(c) of the Judges (Inquiry) c
Rules, 1969, the Presiding Officer of the Committee is
required to forward the report to the Chairman within a period
of three months from the date the charges framed u/s.3(3) of
the Act were served upon him - Therefore, he wants to adopt
every possible tactic to delay the submission of report which
0
may in all probability compel the Committee to make a
request to the Chairman to extend the time in terms of proviso
to Rule 9(2)(c) - However, the issue of bias of respondent
No.3 is not to be seen from the view point of this Court or for
that matter the Committee - It has to be seen from the angle
of a reasonable, objective and informed person - It is his
E
apprehension which is of paramount importance -From the
facts of the case it can be said that petitioner's apprehension
of likelihood of bias against respondent No.3 is reasonable
and not fanciful, though, in fact, he may not be biased -
Keeping in view the finding of this Court on the issue of bias,
F
the Chairman is requested to nominate another distinguished
jurist in place of respondent No.3 - The proceedings initiated
against the petitioner have progressed only to the stage of
framing of charges and the Committee is yet to record its
findings on the charges and submit report -
Therefore,
G
nomination of another jurist will not hamper the proceedings
of the Committee and the re-constituted Committee shall be
entitled to proceed on the charges already framed against the
petitioner - Judges (Inquiry) Act, 1968 - ss. 3 to 6 - Judges
(Inquiry) Rules, 1969 - Rule 9(2)(c).
H
1066
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A
Administration of Justice - Judicial proceedings - Rule
against bias or interest -
Held: The Judge should be
impartial and neutra

## Text

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A
B
[2011] 10 S.C.R. 1064
JUSTICE P. D. DINAKARAN
v.
HON'BLE JUDGES INQUIRY COMMITIEE & ORS.
(Writ Petition (Civil) No. 217 of 2011)
JULY 5, 2011
[G.S. SINGHVI AND CHANDRAMAULI
KR. PRASAD, JJ.]
Constitution of India, 1950 - Article 217 rlw Article 124 -
C Constitution of Inquiry Committee against High Court Judge
- Inclusion of respondent no.3-advocate in the Committee -
Challenge to, on ground of bias - Fifty members of the Rajya
Sabha submitted notice of motion for removal of the writ
petitioner, who was then posted as Chief Justice of the
D Karnataka High Court, under Article 217 read with Article
124(4) of the Constitution -
Chairman of Rajya Sabha
constituted Inquiry Committee comprising of a Supreme Court
Judge, Chief Justice of High Court and respondent no. 3advocate - Constitution of the Committee notified in the
E Official Gazette dated 15-1-2010 - Committee issued notice
requiring the Petitioner to appear to answer the charges -
Petitioner raised objection against inclusion of respondent
No.3- He contended that respondent no.3 was biased against
him on grounds that in a seminar organized by the Bar
F Association of India on 28-11-2009, respondent No.3 had
made a speech opposing his elevation to Supreme Court and
had also drafted resolution for the said purpose - Held: The
petitioner raised the plea of bias only after receiving notice
dated 16-3-2011 though he could have done so immediately
G after publication of notification dated 15-1-2010 - Significantly
respondent No.3 had taken part in the said seminar as VicePresident of the Bar Association - After the seminar,
respondent No.3 is not shown to have done anything which
may give slightest impression to any person of reasonable
H
1064
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1065
. INQUIRY COMMITIEE & ORS.
prudence ·that he was ill-disposed against the petitioner -
A
Rather, as per the petitioner's own statement, he had met
respondent No.3 at the latter's residence on 6-12-2009 and
was convinced that the latter had nothing against him - The
facts of the case lead to an irresistible inference that the
petitioner had waived his right to object to the appointment of B
respondent No.3 as member of the Committee - The belated
raising of objection against inclusion of respondent No.3 in
the Committee u/s.3(2) appears to be a calculated move on
the petitioner's part - Petitioner is an intelligent person and
knows that in terms of Rule 9(2)(c) of the Judges (Inquiry) c
Rules, 1969, the Presiding Officer of the Committee is
required to forward the report to the Chairman within a period
of three months from the date the charges framed u/s.3(3) of
the Act were served upon him - Therefore, he wants to adopt
every possible tactic to delay the submission of report which
0
may in all probability compel the Committee to make a
request to the Chairman to extend the time in terms of proviso
to Rule 9(2)(c) - However, the issue of bias of respondent
No.3 is not to be seen from the view point of this Court or for
that matter the Committee - It has to be seen from the angle
of a reasonable, objective and informed person - It is his
E
apprehension which is of paramount importance -From the
facts of the case it can be said that petitioner's apprehension
of likelihood of bias against respondent No.3 is reasonable
and not fanciful, though, in fact, he may not be biased -
Keeping in view the finding of this Court on the issue of bias,
F
the Chairman is requested to nominate another distinguished
jurist in place of respondent No.3 - The proceedings initiated
against the petitioner have progressed only to the stage of
framing of charges and the Committee is yet to record its
findings on the charges and submit report -
Therefore,
G
nomination of another jurist will not hamper the proceedings
of the Committee and the re-constituted Committee shall be
entitled to proceed on the charges already framed against the
petitioner - Judges (Inquiry) Act, 1968 - ss. 3 to 6 - Judges
(Inquiry) Rules, 1969 - Rule 9(2)(c).
H
1066
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A
Administration of Justice - Judicial proceedings - Rule
against bias or interest -
Held: The Judge should be
impartial and neutral and must be free from bias - If the Judge
is subject to bias in favour of or against either party to the
dispute or is in a position that a bias can be assumed, he is
B disqualified to act as a Judge, and the proceedings will be
vitiated - A pecuniary (bias) interest, however small it may
be, disqualifies a person from acting as a Judge - Tests for
deciding whether non-pecuniary bias would vitiate judicial or
quasi judicial decision -
'Real likelihood' formula and
c 'reasonable suspicion' test - In India, the Courts have, by and
large, applied the 'real likelihood test' - Real likelihood of bias
should appear not only from the materials ascertained by the
complaining party, but also from such other facts which it
could have readily ascertained and easily verified by making
0
reasonable inquiries - Maxims - "Nemo debet esse judex in
propria causa".
Fifty members of the Rajya Sabha submitted a notice
of motion for presenting an address to the President of
India for removal of the writ petitioner, who was then
E posted as Chief Justice of the Karnataka High Court,
under Article 217 read with Article 124(4) of the
Constitution. The notice enumerated the acts of
misbehaviour allegedly committed by the petitioner. After
the motion was admitted, the Chairman of Rajya Sabha
F constituted a Committee under Section 3(2) of the Judges
(Inquiry) Act, 1968 comprising a Supreme Court Judge,
the Chief Justice of a High Court and respondent No.3Shri P.P. Rao, Senior Advocate, Supreme Court of India.
The constitution of the Committee was notified in the
G Official Gazette dated 15.1.2010.
H
On 12.5.2010, the petitioner suo moto sent a letter to
the Vice-President of India and Chairman, Rajya Sabha
stating therein that through print and electronic media he
had come to know about constitution of the Committee
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1067
INQUIRY COMMITIEE & ORS.
under Section 3(2) of the Act and claiming that the A
allegations levelled against him were false and baseless.
After preliminary scrutiny of the material placed
before it, the Committee issued notice dated 16.3.2011,
which was served upon the petitioner on 23.3.2011,
8
requiring him to appear on 9.4.2011 to answer the
charges. Upon receiving the notice, the petitioner
submitted representation dated 8.4.2011 to the VicePresident of India and the Chairman, Rajya Sabha with
the prayer that the order admitting notice of motion may
C
be withdrawn, the order constituting the Inquiry
Committee be rescinded and notice issued by the
Committee may be annulled. In that representation, the
petitioner, for the first time, raised an objection against
the 'inclusion of respondent No.3 in the Committee by
alleging that the latter had already expressed views in the
D
matter and declared him guilty of certain charges. The
petitioner claimed that respondent No.3 had led a
delegation of the advocates to meet the then Chief
Justice of India and was a signatory to the representation
made by the senior advocates against his elevation to the
E
Supreme Court. Thereafter, on 20.4.2011, the petitioner
made an application to the Committee and raised several
objections against notice dated 16.3.2011 including the
one that respondent No.3 was biased against him. After
considering the objections of the petitioner, the
F
Committee (respondent No.3 did not take part in the
proceedings) passed detailed order dated 24.4.2011.
1!1 the present writ petition filed under Article 32 of the
Constitution, the writ petitioner prayed for grant of a G
declaration that the proceedings conducted by the
Committee on 24.4.2011 were null and void. The
petitioner contended that inclusion of respondent No.3
in the Committee constituted by the Chairman had the
effect of vitiating the proceedings held so far because the
1068
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A said respondent was biased against the petitioner. It was
emphasized that by virtue of his active participation in the
seminar organized by the Bar Association of India on
28.11.2009, respondent No.3 had disqualified himself
from being a member of the Committee. Respondent
B no.1, on the other hand, contended that by maintaining
silence for over one year against the appointment of
respondent No.3 as member of the Committee, the
petitioner will be deemed to have waived his right to
question the constitution of the Committee.
f
The
questions which therefore arose for
c
consideration were: whether by virtue of his active
participation in the seminar organised by the Bar
Association of India on 28.11.2009 and his opposition to
the elevation of the petitioner to this Court were sufficient
D to disqualify respondent No.3 from being included in the
Committee constituted under Section 3(2) of the Act and
whether by his conduct the petitioner will be deemed to
have waived his right to object to the appointment of
respondent No.3 as a member of the Committee.
E
Dismissing the writ petition, the Court
HELD:1.1. Natural justice is a branch of public law.
It is a formidable weapon which can be wielded to secure
justice to citizens. Rules of natural justice are 'basic
F values' which a man has cherished throughout the ages.
Principles of natural justice control all actions of public
authorities by applying rules relating to reasonableness,
good faith and justice, equity and good conscience.
Natural justice is. a part of law which relates to
G administration of justice. Rules of natural justice are
indeed great assurances of justice and fairness. The
underlying object of rules of natural justice is to ensure
fundamental liberties and rights of subjects. They thus
serve public interest. The golden rule which stands firmly
H established is that the doctrine of natural justice is not
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1069
INQUIRY COMMITTEE & ORS.
only to secu·re justice but to prevent miscarriage of A
justice. [Para 22] [1104~E-H]
1.2. The traditional English Law recognised the
following two principles of natural justice: "(a) "Nemo
debet esse judex in propria causa: No man shall be a judge
8
in his own cause, or no man can act as both at the one
and the same time - a party or a suitor and also as a
judge, or the deciding authority must be impartial and
without bias; and (b) Audi alteram partem: Hear the other
side, or both the sides must be heard, or no man should
C
be condemned unheard, or that there must be fairness
on the part of the deciding authority." However, over the
years, the Courts throughout the world have discovered
new facets of the rules of natural justice and applied them
to judicial, quasi-judicial and even administrative actions/
decisions. At the same time, the Courts have repeatedly
D
emphasized that the rules of natural justice are flexible
and their application depends upon the facts of a given
case and the statutory provisions, if any, applicable,
nature of the right which may be affected and the
consequences which may follow due to violation of the
E
rules of natural justice. [Para 23] [1105-A-E]
. 1.3. In the instant case, the application of first of the
1 two principles of natural justice recognised by the
traditional English law, i.e. Nemo debet esse judex in
F
propria causa was in question. The said principle consists
of the rule against bias or interest and is based on three
maxims: (i) No man shall be a judge in his own cause;
(ii) Justice should not only be done, but manifestly and
undoubtedly be seen to be done; and (iii) Judges, like G
Caesar's wife should be above suspicion. The first
requirement of natural justice is that the Judge should be
impartial and neutral and must be free from bias. He is
supposed to be indifferent to the parties to the
controversy. He cannot act as Judge of a cause in which
H
1070
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A he himself has some interest either pecuniary or
otherwise as it affords the strongest proof against
neutrality. He must be in a position to act judicially and
to decide the matter objectively. A Judge must be of
sterner stuff. His mental equipoise must always remain
B firm and undetected. He should not allow his personal
prejudice to ·go into the decision-making. The object is
not merely that the scales be held even; it is also that they
may not appear to be inclined. If the Judge is subject to
bias in favour of or against either party to the dispute or
c is in a position that a bias can be assumed, he is
disqualified to act as a Judge, and the proceedings will
be vitiated. This rule applies to the judicial and
administrative authorities required to act judicially or
quasi-judicially. [Pars 25] [1111-G-H; 1112-A-D]
D
1.4. A pecuniary (bias) interest, however small it may
be, disqualifies a person from acting as a Judge. Other
types of bias, however, do not stand on the same footing
and the Courts have, from time to time, evolved different
rules for deciding whether personal or official bias or bias
E as to subject matter or judicial obstinacy would vitiate the
ultimate action/order/decision. [Para 26] [1112-E-F]
1.5. Evidently the English Courts have applied
different testS for deciding whether non-pecuniary bias
C'
would vitiate judicial or quasi judicial decision. Many
judges have
1 laid down and applied the 'real likelihood'
formula, holding that the test for disqualification is
whether the facts, as assessed by the court, give rise to
a real likelihood of bias. Other judges have employ~d a
G 'reasonable suspicion' test, emphasizing that justice must
be seen to' be done, and that no person should adjudicate
in any way if it might reasonably be thought that he ought
not to act because of some personal interest. [Para 34]
[1127-B-C]
H
1.6. In India, the Courts have, by and large, applied
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1071
INQUIRY COMMITTEE & ORS.
the 'real likelihood test' for deciding whether a particular A
decision of the judicial or quasi judicial body is vitiated
due to bias. [Para 35] [1130-H; 1131-A]
1.7. No man can be a Judge in his own .cause and
justice should not only be done, but manifestly be seen
8
to be done. Scales should not only be held even but it
must not be seen lo be inclined. A person having interest
in the subject matter of cause is precluded from acting
as a Judge. To disqualify a person from adjudicating on
the ground of interest in the subject matter of /is, the test C
of real likelihood of the bias is to be applied. In other
words, one has to enquire as to whether there is real
danger of bias on the part of the person against whom
such apprehension is expressed in the sense that he
might favour or disfavour a party. In each case, the Court
has to consider whether a fair minded and informed
D
person, having considered all the facts would reasonably
apprehend that the Judge would not act impartially. To
put it differently, the test would be whether a reasonably
intelligent man fully apprised of all the facts would have
a serious apprehension of bias. In cases of nonE
pecuniary bias, the 'real likelihood' test has been
preferred over the 'reasonable suspicion' test and the
Courts have consistently held that in deciding the
question of bias one has to take into consideration
human probabilities and ordinary course of human
F
conduct. Real likelihood of bias should appear not only
from the materials ascertained by the complaining party,
but also from such other facts which it could have readily
ascertained and easily verified by making reasonable
inquiries. [Para 43] [1137-B-G]
G
Sub-Committee on Judicial Accountability vs. Union of
India (1991) 4 SCC 699; Union of India v. P.K. Roy AIR 1968
SC 850: 1968 SCR 186; Suresh Koshy George v. University
of Kera/a AIR 1969 SC 198: 1969 SCR 317 ; A.K. Kraipak
H
1072
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A
v. Union of India (1969) 2 SCC 262: 1970 (1) SCR 457; State
of Orissa v. Dr.(Miss) Binapani Dei (1967) 2 SCR 625;
Maneka Gandhi v. Union of India (1978) 1 SCC 248: 1978 (
2) SCR 621; Olga Tellis v. Bombay Municipal Corporation
(1985) 3 SCC 545:1985 (2) Suppl .. SCR 51; S. Parthasarthi
B. v. State of A.P. (1974) 3 SCC 459: 1974 (1) SCR 697; Ashok
Kumar Yadav v. State of Haryana (1985) 4 SCC 417: 1985
(1) Suppl. SCR 657; Manak Lal v. Dr.Prem Chand Singhvi
AIR 1957 SC 425: 1957 SCR 575; Dr. G. Sarana v. University
of Lucknow (1976) 3 SCC 585: 1977 (1) SCR 64; Ranjit
C Thakur v. Union of India (1987) 4 SCC 611: 1988 (1) SCR
512; Secretary to Government, Transport Department v.
Munuswamy Mudaliar 1988 (Supp.) SCC 651; Bihar State
Mineral Development Corporation v. Encon Builders (/) (P)
Ltd. (2003) 7 SCC 418: 2003 (2) Suppl. SCR 812 - referred
D to.
Russel v. Duke of Norfolk (1949) 1 All ER 108; Byrne v.
Kinematograph Renters Society Limited (1958) 2 All ER 579;
In re: H.K. (An infant) (1967) 2 QB 617; Ridge v. Baldwin
(1964) AC 40; The Queen v. Rand (1866) LR 1 (Q.B.D.) 230;
· E Rex v. Sussex Justices, Ex Parte McCarthy (1924) 1 KB 256;
Regina v. Camborne Justices Ex parte Pearce (1955) 1 QB
41; Eckersley v. Mersey Docks and Harbour Board (1894) 2
QB 667; Rex v. Justices of County Cork (1910) 2 IR 271;
Frome United Breweries Company v. Bath Justices (1926) AC
F 586; Rex v. Essex Justices, Ex parte Perkins (1927) 2 KB
475; Metropolitan Properties (FGC) Ltd. v. Lannon (1969) 1
QB 577; R v. Gough (1993) AC 646; In re: Medicaments and
Related Classes of Goods (No.2) 2001 (1) WLR 700;
President of the Republic of South Africa v. South African
G Rugby Football Union 1999 (4) SA 147; Johnson v. Johnson
(2000) 17 4 Australian Law Reports 655 and R v. Bow Street
Metropolitan Stipendiary Magistrate and others ex parte
Pinochet Ugarte (No.2)(1999)1 All ER 577 - referred to.
M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 544:
H 1979 (1) SCR 192; Triveniben v. State of Gujarat (1989) 1
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1073
INQUIRY COMMITTEE & ORS.
SCC 678: 1989 (1) SCR 509; Krishna Swami v. Union of A
India and others (1992) 4 SCC 605: 1992 (1) Suppl. SCR
53; R.K. Anand v. Delhi High Court (2009) 8 SCC 106: 2009
(11) SCR 1026 - cited.
Halsbury's Laws of England [Vol. 29(2) 4th Edn.
Reissue 2002, para 560 page 379] - referred to.
B
2.1. Respondent No.3 participated in the seminar
organised by the Bar Association of India of which he
was Vice-President. He demanded public inquiry into the
charges levelled against the petitioner before his C
elevation as a Judge of this Court. During the seminar,
many eminent advocates spoke against the proposed
elevation of the petitioner on the ground that there were
serious allegations against him. Thereafter, respondent
No.3 drafted a resolution opposing elevation of the
D
petitioner as a Judge of this Court. He along with other
eminent lawyers met the then Chief Justice of India.
These facts could give rise to reasonable apprehension
F
in the mind of an intelligent person that respondent No.3
was likely to be biased. A reasonable, objective and
E
informed person may say that respondent No.3 would not
have opposed elevation of the petitioner if he was not
satisfied that there was some substance in the
allegations levelled against him. It is true that the Judges
and lawyers are trained to be objective and have the
capacity to decipher grain from the chaff, truth from the
falsehood and this Court has no doubt that respondent
No.3 possesses these qualities. This Court also agrees
with the Committee that objection by both sides perhaps
"alone apart from anything else is sufficient to confirm his
impartiality". However, the issue of bias of respondent G
No.3 has not to be seen from the view point of this Court
or for that matter the Committee. It has to be seen from
the angle of a reasonable, objective and informed person.
It is his apprehension which is of paramount importance.
From the facts narrated in the earlier part of the judgment H
1074
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A it can be said that petitioner's apprehension of likelihood
of bias against respondent No.3 is reasonable and not
fanciful, though, in fact, he may not be biased. [Para 45]
[1138-H; 1139-A-E]
9
2.2. As regards the further question as to whether
order passed by the Committee on 24.4.2011 should be
quashed on the ground of reasonable likelihood of bias
of respondent No.3, one has to keep in mind that the
petitioner is not a layperson. He is well-versed in law and
possesses a legally trained mind. Further, for the last 15
C years, the petitioner has held constitutional posts of a
Judge and then as Chief Justice of the High Court. It is
not the pleaded case of the petitioner that he had no
knowledge about the seminar organized by the Bar
Association of India on 28.11.2009 which was attended
D by eminent advocates including two former Attorney
Generals and in which respondent No.3 made a speech
opposing his elevation to this Court and also drafted
resolution for the said purpose. "ihe proceedings of the
seminar received wide publicity in the print and electronic
E media. Therefore, it can be said that much before
constitution of the Committee, the petitioner had become
aware of the fact that respondent No.3, who, as per the
petitioner's own version, had appreciated his work on the
Bench and had sent congratulatory message when his
F name was cleared by the Collegium for elevation to this
Court, had participated in the seminar and made speech
opposing his elevation and also drafted resolution for the
said purpose. The Chairman had appointed respondent
No.3 as member of the Committee keeping in view his
G long experience as an eminent advocate and expertise
in the field of constitutional law. The constitution of the
Committee was notified in the Official Gazette dated
15.1.201 O and was widely publicised by almost all
newspapers. Therefore, it can reasonably be presumed
H that the petitioner had become aware about the
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1075
INQUIRY COMMITIEE & ORS.
constitution of the Committee, which included
A
respondent No.3, in the month of January, 2010. In his
representation dated 12.5.2010, the petitioner claimed that
he came to know about the constitution and composition
of the Committee through the print and electronic media.
Thus, at least on 12.5.2010 he was very much aware that
8
respondent No.3 had been appointed as a member of the
Committee. Notwithstanding this, he did not raise any
objection apparently because after meeting respondent
No.3 on 6.12.2009 at the latter's residence, the petitioner
felt satisfied that the said respondent had nothing against C
him. Therefore, belated plea taken by the petitioner that
by virtue of his active participation in the meeting held by
the Bar Association of India, respondent No.3 will be
deemed to be biased against him does not merit
acceptance. Significantly respondent No.3 had nothing
0
personal against the petitioner. He had taken part in the
seminar as Vice-President of the Association. The
concern shown by senior members of the Bar including
respondent No.3 in the matter of elevation of the
petitioner, who is alleged to have misused his position
as a Judge and as Chief Justice of the High Court for
E
material gains was not actuated by ulterior motive. They
genuinely felt that the allegations made against the
petitioner need investigation. After the seminar,
respondent No.3 is not shown to have done anything
which may give slightest impression to any person of
F
reasonable prudence that he was ill-disposed against the
petitioner. Rather, as per the petitioner's own statement,
he had met respondent No.3 at the latter's residence on
6.12.2009 and was convinced that the latter had nothing
against him. This being the position, it is not possible to
G
entertain the petitioner's plea that constitution of the
Committee should be declared nullity on the ground that
respondent No.3 is biased against him and order dated
24.4.2011 be quashed. [Para 46] [1139-G-H; 1140-A-H;
1141-A-D]
H
1076
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A
2.3. Also, admittedly, the petitioner raised the plea of
bias only after receiving notice dated 16.3.2011 which was
accompanied by statement of charges and the lists of
documents and witnesses. The petitioner's knowledgeful
silence in this regard for a period of almost ten months
8 militates against the bona tides of his objection to the
appointment of respondent No.3 as member of the
Committee. A person of the petitioner's standing can be
presumed to be aware of his right to raise an objection.
If the petitioner had slightest apprehension that
respondent No.3 had pre-judged his guilt or he was
C otherwise biased, then, he would have on the first
avail!ble qpportunity objected to his appointment as
member of the Committee. The petitioner could have done
so immediately after publication of notification dated
15.1.2010. He could have represented to the Chairman
D that inves~gation by a Committee of which respondent
No.3 was a member will not be fair and impartial because
the former had already presumed him to be guilty. ·This
Court cannot predicate the result of the representation
but such representation would have given an opportunity
E to the Chairman to consider the grievance made by the
petitioner and take appropriate decision as he had done
in March, 2010 when respondent No.3 had sought
recusal from the Committee in the wake of demand made
by a section of the Bar which had erroneously assumed
F that the petitioner had consulted respondent No.3.
However, the fact of the matter is that the petitioner never
thought that respondent No.3 was prejudiced or illdisposed against him and this is the reason why he did
not raise objection till April, 2011 against the inclusion of
G respondent No.3 in the Committee. This leads to an
irresistible inference that the petitioner had waived his
right to object to the appointment of respondent No.3 as
member of th~ Committee. The right available to the
petitioner to object to the appointment of respondent No.3
H in the Committee was personal to him and it was always
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1077
INQUIRY COMMITIEE & ORS.
open to him to waive the same. [Para 47] [1141-E-H; 1142A
A·D]
3.1. In conclusion, it is held that belated raising of
objection against inclusion of respondent No.3 in the
Committee under Section 3(2) appears to be a calculated
8
move on the petitioner's part. He is an intelligent person
and knows that in terms of Rule 9{2){c) of the Judges
{Inquiry) Rules, 1969, the· Presiding Officer of the
Committee is required to forward the report to the
Chairman within a period of three months from the date
C
the charges framed under Section 3(3) of the Act were
served upon him. Therefore, he wants to adopt every
possible tactic to delay the submission of report which
may in all probability compel the Committee to make a
request to the Chairman to extend the time in terms of
proviso to Rule 9{2){c). This Court or, for that reason, no
D
Court can render assistance to the petitioner in a petition
filed with the sole object of delaying finalisation of the
inquiry. [Para 51] [1146-C-E]
3.2. However, keeping in view the finding of this Court
E
on the issue of bias, the Chairman is requested to
nominate another distinguished jurist in place of
respondent No.3. The proceedings initiated against the
petitioner have progressed only to the stage of framing
of charges and the Committee is yet to record its findings
on the charges and submit report. Therefore, nomination
of another jurist will not hamper the proceedings of the
Committee and the reconstituted Committee shall be
entitled to proceed on the charges already framed
against the petitioner. [Para 52] [1146-F-G]
Lachhu Mal v. Radhey Shyam AIR 1971 SC 2213: 1971
SCR 693; Manak Lal v. Dr.Prem Chand Singhvi AIR 1957
SC 425: 1957 SCR 575; Dhirendra Nath Gorai v. Sudhir
Chandra AIR 1964 SC 13001: 1964 SCR 1001 - referred
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[2011] 10 S.C.R.
A
Case Law Reference:
1978 (2) SCR 621
Referred to.
Para 13
1979 (1) SCR 192
Cited
Para 13
B
1988 (1) SCR 512
Referred to.
Para 13
1989 (1) SCR 509
Cited
Para 13
(1999) 1 All ER 577
Referred to.
Para 13
1992 (1) Suppl. SCR 53
Cited
Para 13
c
1957 SCR 575
Referred to.
Para 14
1977 (1) SCR 64
Referred to.
Para 14
2009 (11) SCR 1026
Cited
Para 14
D
(1991) 4 sec 699
Referred to.
Para 18
(1949) 1 All ER 108
Referred to.
Para 24
(1958) 2 All ER 579
Referred to.
Para 24
E
1968 SCR 186
Referred to.
Para 24
1969 SCR 317
. Referred to.
Para 24
1970 (1) SCR 457
Referred to.
Para 24
F
(1967) 2 SCR 625
Referred to.
Para 24
(1964) AC 40
Referred to.
Para 24
1985 ( 2 ) Suppl. SCR 51
Referred to.
Para 24
(1866) LR 1 (Q.B.D.) 230
Referred to.
Para 27
G
(1924) 1 KB 256
Referred to.
Para· 28
(1955) 1 QB 41
Referred to.
Para 29
(1894) 2 QB 667
Referred to.
Para 29
H
(1910) 2 IR 271
Referred to.
Para 29
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1079
INQUIRY COMMITTEE & ORS.
(1926) AC 586
Referred to.
Para 29
A
(1927) 2 KB 475
Referred to.
Para 29
(1969) 1 QB 577
Referred to.
Para 30
(1993) AC 646
Referred to.
Para 31
B
1999 (4) SA 147
Referred to.
Para 34
(2000) 174 Australian
Referred to.
Para 34
Law Reports 655
1974 (1) SCR 697
. Referred to.
Para 37
c
1985 (1) Suppl. SCR 657
Referred to.
Para 39
1988 (1) SCR 512
Referred to.
Para 40
1988 (Supp.) sec 651
Referred to.
Para 41
D
2003 (2 ) Suppl. SCR 812 Referred to.
Para 42
1971 SCR 693
Referred to.
Para 48
1964 SCR 1001
Referred to.
Para 50
E
CIVIL ORIGINAL JURISDICTION : Under Article 32 of the
Constitution of India.
A. Sharan and U.U. Lalit, Amit Anand Tiwari, Ashutosh Jha,
Vivek Singh, Romy Chacko, Nitin Sangra, A. Radhakrishnan,
F
Prashant Bhushan and Kamini Jaiswal for the appearing
parties.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Although, the prayers made _in this
G
petition filed under Article 32 of the Constitution are for quashing
order dated 24.4.2011 passed by the Committee constituted
by the Chairman of the Council of States (Rajya Sabha) under
Section 3(2) of the Judges (Inquiry) Act, 1968 (for short, "the
Act") and for grant of a declaration that the proceedings
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[2011] 10 S.C.R.
A conducted by the Committee on 24.4.2011 are null and void,
the tenor of the grounds on which these prayers are founded
shows that the petitioner is also aggrieved by the inclusion of
respondent No.3-Shri P.P. Rao, Senior Advocate, Supreme
Court of India in the Committee under Section 3(2)(c) of the Act.
B
2. Fifty members of the Rajya Sabha submitted a notice
of motion for presenting an address to the President of India
for removal of the petitioner, who was then posted as Chief
Justice of the Karnataka High Court, under Article 217 read
C with Article 124(4) of the Constitution of India. The notice
enumerated the acts of misbehaviour allegedly committed by
the petitioner and was accompanied by an explanatory note
and documents in support of the allegations. After the motion
was admitted, the Chairman of the Rajya Sabha (hereinafter
referred to as, "the Chairman") constituted a Committee
D comprising Mr. Justice V.S. Sirpurkar, Judge, Supreme Court
of India, Mr. Justice A.R. Dave, the then Chief Justice of Andhra
Pradesh High Court and respondent No.3.
3. Immediately after issue of notification dated 15.1.2010
E under Section 3(2) of the.Act, the newspapers carried reports
suggesting that there was an objection to the inclusion of
respondent No.3 in the Committee on the ground that he had
given legal opinion to the petitioner in December, 2009. On
reading the newspaper reports, respondent No.3 sent letter
F dated 19.1.2010 to the Chairman with the request that he may
be relieved from the Committee. Paragraph 2 of that letter
reads as under:
"Although, there is no conflict of duty and interest, as I did
not render any professional service to him, there is a
G
demand from certain quarters for my recusal which you
might have noticed in today's Hindustan Times. I am sure
you will appreciate that justice should not only be done but
also seen to be done. Even though I have no official
communication as yet about my nomination, it will not be
H
proper for me to function as a member of the Committee
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1081
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
in the fact of such objection. I request you to kindly relieve
A
me forthwith and nominate another jurist in my place and
oblige."
4. After due consideration, the Chairman declined to
accept the request of respondent No.3 and asked him to
8
continue as member of the Committee. Thereupon, respondent
No.3 sent letter dated 21.1.2010 and agreed to accept the
assignment. On that very day, Convenor of the Campaign for
Judicial Accountability and Reform sent a letter to the VicePresident wherein a demand was made in the garb of making
C
suggestion that Mr. Justice V.S. Sirpurkar should recuse from
the Committee because he had association with the petitioner
as a Judge of the Madras High Court from 1997 to 2003.
Similar suggestion-cum-demand was made qua respondent
No.3 by stating that the petitioner had consulted respondent
No.3 and the latter had advised him to get a commission of
D
inquiry appointed to go into the charges.
5. On being instructed by the Chairman, the Secretary
General of the Rajya Sabha forwarded a copy of the aforesaid
letter to respondent No.3. In his response dated 27.1.2010,
E
respondent No.3 detailed the background in which the petitioner
had met him on 6.12.2009 and what transpired between them.
The relevant paragraphs of that letter read as under:
"I would like to place on record as to ·why Chief Justice
Dinakaran met me at my residence with prior appointment
on Sunday, the 6th December, 2009 at 02:30 p.m. On
Saturday, 28 Nov '09, there was a day-long National
Seminar organized by The Bar Association of India under
F
the Presidentship of Shri F.S. Nariman to discuss the
problems of the Judiciary, in which the Hon'ble Law
G
Minister also participated briefly in the inaugural session.
I am one of the Vice-Presidents. In the course of my
speech, I demanded that the Collegium should not proceed
further with the recommendation to- bring Chief Justice
P.O. Dinakaran to the Supreme Court and there should be
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[2011] 10 S.C.R.
a public inquiry in which Chief Justice Dinkaran should
clear himself of the charges levelled against by senior
members of the Bar and during the inquiry, he should step
down from his office and remain on leave. Many eminent
members of the Bar including two former Attorney Generals
for India namely, Shri Soli J. Sorabjee and Shri Ashok
Desai, a former President of International Bar Association
namely Shri RKP Shankar Dass and a former President
of Law Asia namely, Shri Anil Divan, who participated in
the seminar expressed the same view. Finally, on the
request of the President of Bar Association of India, I
drafted the Resolution which was touched up by him before
it was passed unanimously by the members present.
The speeches made at the seminar, including mine, were
reported in the media. In the following week, Chief Justice
Dinakaran visited Delhi, presumably to meet the Chief
Justice of India, members of the Collegium and others.
While in Delhi, he telephoned to me saying that he was
surprised that I too believed that he was guilty of the
1
charges levelled against him and he would like to meet me
personally. When the Chief Justice of a High Court seeks
appointment, it would be improper for any member of the
legal profession to refuse it. When he met me on
December 06, 2009 I told him that when serious
allegations had been made against him by senior
members of the Bar practicing at Chennai, Bangalore and
Delhi, it was proper that there should be a public inquiry.
When he said that he was totally innocent and he could
convince me about it, I told him politely that he has to
convince those who made the allegations on some basis
and that will be possible only in a public inquiry. It was then
I suggested that if he was innocent, he should himself invite
an inquiry under the Commissions of Inquiry Act, 1952 and
offer to proceed on leave during the Inquiry. There was
neither consultation on the merits of the charges nor any
opinion sought or given. He did not seek my professional
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1083
INQUIRY COMMITIEE & ORS. [G.S. SINGHVI, J.]
services for his case. The matter ended there. What I told
A
him in private when he met me at my residence was
nothing but what I had earlier demanded in public at the
seminar. There is absolutely no question of conflict of
interest and duty in such a case. When the Hon'ble
Chairman of Rajya Sabha, after due consideration of my s
offer to quit, requested me to continue, I accepted the
request most respectfully as it is a call to public duty from
no less a person than the Vice-President of India, which I
shall not shirk."
6. On 12.5.2010, the petitioner suo moto sent a letter to
C
the Vice-President of India and Chairman, Rajya Sabha stating
therein that through print and electronic media he had come to
know about constitution of the Committee under Section 3(2)
of the Act. The petitioner claimed that the allegations levelled
against him were false and baseless. He expressed anguish
D
on being prevented from performing his judicial work and
prayed that the inquiry initiated against him may be completed
expeditiously and his grievance be redressed at the earliest.
For the sake of reference, letter dated 12.5.2010 is reproduced
below:
E
"12th May, 2010
The Hon'ble Vice President of India
and Chairman, Rajya Sabha
Parliament
New Delhi
Your Excellency,
May I take this opportunity to present this supplication
for kind consideration of Your Excellency.
2. Even though I have learnt through print and electronic
media that an impeachment motion has been moved
against me under Article 217 read with 124(4) of the
Constitution of India before the Rajya Sabha by 75 Hon'ble
Members of Parliament, as on date, I have not received
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1084
SUPREME COURT REPORTS
[2011] 10 S.C.R.
any official communication whatsoever in this regard till
date.
3.' I have also learnt through print and electronic media
that a Committee, as contemplated under Section 3(b)
of The Judges (Inquiry) Act, 1968, has been constituted
by Your Excellency consisting of Hon'ble Mr. Justice
V.S. Sirpurkar, Judge, Supreme Court of India; Hon'ble
Mr. Justice A.R. Dave, the then Chief Justice, Andhra
Pradesh High Court and Mr. P.P. Rao, Senior Advocate,
Jurist, in January, 2010, but till date I have not officially
heard anything in this connection to enable me to explain
my case. Now that Mr. Justice A.R. Dave is elevated to
the Supreme Court of India, the Committee requires to be
reconstituted.
4. In the meanwhile, the print and electronic media had
given wild publicity about the allegations made against me,
causing irreparable damage to me and to my family
personally and to the constitutional position I am holding.
All the allegations are made with an ulterior motive to stall
my elevation to the Supreme Court, when the Hon'ble
collegium of the Supreme Court recommended my name
for elevating me to Supreme Court.
5. It appears that Hon'ble Rajya Sabha Members have
been misled by the reports of the District Collector,
Thiruvallur, State of Tamil Na du dated 8th, 10th and 15th
October, 2009 stating that myself and my wife have
encroached 199.53 acres of lands at Kaverirajapuram,
Tiruttani Taluk, Thiruvallur District, State of Tamil Nadu. As
the said reports of the District Collector were specifically
denied by me as baseless, the matter was referred to a
Committee under the Chairmanship of Major General (Dr.)
Siva Kumar, Survey of India, Department of Science and
Technology, who, ultimately on 15th February, 2010,
produced a survey map to my wife, Dr. K.M. Vinodhini
JUSTICE P. D. DINAKARAN v.