Supreme Court of India
JUSTICE P. D. DINAKARANversusHON'BLE JUDGES INQUIRY COMMITTEE & ORS.
- Citation
- 2011 INSC 452
- Decided
- 5 July 2011
- Disposal
- Dismissed
- Bench
- G S SINGHVI
Holding
The petition is dismissed as the petitioner’s delayed objection amounts to a waiver, though the Committee must replace the biased member with another jurist.
Summary
Justice P.D. Dinakaran, then Chief Justice of the Karnataka High Court, challenged the constitution of an Inquiry Committee set up under the Judges (Inquiry) Act, 1968 to investigate allegations against him. He objected to the inclusion of senior advocate P.P. Rao (respondent No.3) on grounds of bias, citing Rao's participation in a Bar Association seminar where he opposed Dinakaran’s elevation to the Supreme Court. The Court held that Rao’s past conduct gave rise to a reasonable apprehension of bias, but Dinakaran’s belated objection—made only after receiving the Committee’s notice—constituted a waiver of his right to object. Consequently, the writ petition was dismissed, but the Court directed the Chairman to replace Rao with another distinguished jurist so that the inquiry could proceed without prejudice.
Issues considered
- The participation of respondent No.3 in a Bar Association seminar opposing the petitioner’s elevation disqualifies him from the Inquiry Committee under the Judges (Inquiry) Act, 1968.
- Whether the petitioner waived his right to object to the appointment of respondent No.3 by failing to raise the objection promptly.
- Whether the Committee’s order dated 24‑April‑2011 is vitiated by alleged bias of respondent No.3.
- Whether the writ petition under Article 32 seeking a declaration of nullity of the Committee’s proceedings should be entertained.
Legislation cited
- Judges (Inquiry) Act, 1968s. 3, s. 4, s. 5, s. 6
- Judges (Inquiry) Rules, 1969s. Rule 9(2)(c)
Subjects
biasnatural justicereal likelihood testjudicial inquirywaiverJudges (Inquiry) ActArticle 32impartialitycommittee composition
Judgment
[2011] 10 S.C.R. 1064
A JUSTICE P. D. DINAKARAN
v.
HON'BLE JUDGES INQUIRY COMMITIEE & ORS.
(Writ Petition (Civil) No. 217 of 2011)
JULY 5, 2011
B
[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. 3-
advocate - 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 Vice-
President 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
reasonable inquiries - Maxims - "Nemo debet esse judex in
0
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.3-
Shri 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.
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
H
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 Vice-
President 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.
c The questions which therefore arose for
f
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 laid down and applied the 'real likelihood'
1
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 non- E
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) 174 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.
B
Reissue 2002, para 560 page 379] - referred to.
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
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
F
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
personal against the petitioner. He had taken part in the 0
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 ill-
disposed 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; 1142- A
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 F
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]
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
~- H
1078 SUPREME COURT REPORTS [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
(1967) 2 SCR 625 Referred to. Para 24
F
(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,
Prashant Bhushan and Kamini Jaiswal for the appearing
F
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
H
1080 SUPREME COURT REPORTS [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 Vice-
President 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
F
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
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 H
1082 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B 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
c 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
D 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
E 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
F 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
G 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
H 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 F
Your Excellency,
May I take this opportunity to present this supplication
for kind consideration of Your Excellency.
G
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 H
1084 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B
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
c 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.
D 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
E 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,
F 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
G 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
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES·1085
INQUIRY COMMITIEE & ORS. [G.S. SINGHVI, J.]
Dinakaran, holding that there is no encroachment of any A
government/public lands either by me or by my wife.
6. All the allegations leveled against me are false and
baseless.
7. Myself and my family members are humiliated and put 8
into great hardship by the vested interest persons; and I
have been prevented to discharge my obligations under
the constitution to perform the judicial work, pending
enquiry by the Committee. But, the enquiry is yet to
commence. Your Excellency may kindly appreciate that the C
enquiry initiated against me cannot be an endless wait.
Having patiently waited all these days for an opportunity
to explain my case that the allegations are baseless and
there is no material and merit whatsoever, I earnestly D
request Your Excellency to do the needful, so that, my
genuine grievance may kindly be redressed atthe earliest
and justice be rendered to me expeditiously.
With kind regards,
E
Yours sincerely,
Sd/-
[P.D. Dinakaran]"
(emphasis supplied)
F
7. In the meanwhile, Mr. Justice A.R. Dave, Chief Justice
of the Andhra Pradesh High Court, was transferred to the
Bombay High Court and was then elevated as Judge of this
Court and in his place Mr. Justice J.S. Khehar, Chief Justice
of the Uttarakhand High Court was included in the Committee. G
In September, 2010, Mr. Justice Aftab Alam, Judge, Supreme
Court of India was appointed as Presiding Officer because Mr.
Justice V.S. Sirpurkar recused from the Committee.
8. After about two months of the aforesaid development,
the petitioner's wife, Dr. (Mrs.) K.M. Vinodhini Dinakaran, sent H
1"
1086 SUPREME COURT REPORTS (2011] 10 S.C.R.
A letter dated 27 .11.201 O to the Presiding Officer and the
members of the Committee with the request that investigation
into the allegations levelled against her husband should be got
done through unbiased officials. This request was made in the
context of some inquiry having been made by Mr.
B Govindswamy, Village Administrative Officer, Kaverirajapuram
Village, Tiruttani Taluk and Mr. Veeraraghavan, former
Tahasildar Tiruttani. She claimed that both the officials were in
collusion with the then District Collector, Mr. Palani Kumar IAS,
who was inimical to the petitioner. She requested that the
c investigating agency should not engage Mr. Govindswamy and
Mr. Veeraraghavan because they had already acted with mala
tides and bias against her family.
9. After preliminary scrutiny of the material placed before
it, which included documents summoned from Government
D departments and agencies/instrumentalities of the State, the
Committee issued notice dated 16.3.2011, which was served
upon the petitioner on 23.3.2011, requiring him to appear on
9.4.2011 to answer the charges. The notice was accompanied
by a statement of charges and lists of the documents and
E witnesses.
10. Upon receiving the notice, the petitioner submitted
representation dated 8.4.2011 to the Vice-President of India
and the Chairman, Rajya Sabha with the prayer that the order
F admitting notice of motion may 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
G Committee by alleging that the latter had already expressed
views in the 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 Supreme Court.
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1087
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
The petitioner further claimed that he felt agitated by the attitude A
of respondent No.3 because earlier the said respondent had
not only appreciated his work but even called upon him to
communicate his appreciation and also sent congratulatory
message on his name being cleared for elevation to the
Supreme Court. The petitioner also stated that he along with B
his wife and one K. Venkatasubbaraju met respondent No.3 at
his residence and, during the meeting, respondent No.3
admitted that he was misled by certain vested interest in signing
the representation. Paragraphs 6, 7 and 8 of the letter written
by the petitioner are reproduced below: c
"6. Once I came to know that Shri P.P. Rao has led the
delegation against me demanding that I should not be
elevated, I was agitated by this attitude of Shri P.P. Rao.
Earlier Shri P.P. Rao had always appreciated my work
on the bench and even called on me to communicate the D
same. When I was a judge of the High Court of
Judicature at Madras, Shri P.P. Rao called on me and
appreciated my work as Judge. He also paid encomiums
for my bold and independent approach. Soon after my
name was considered and cleared for elevation to the E
Supreme Court of India Shri P.P. Rao congratulated me
in writing. Therefore, I I was aghast when I learnt about
his opposition to my elevation. Shri K. Venkatasubbaraju,
an Advocate who is a common friend of both of us spoke
to Shri P.P. Rao and arranged for a meeting between us. F
Accordingly, I along with Shri K. Venkatasubbaraju
accompanied by my wife called on Shri P.P. Rao at his
residence and confronted him with the newspaper reports.
Shri P.P. ··Rao admitted that he was misled by certain
vested interests in signing the petition against me he G
even went to the extent of saying that he was forced to
sign the petition as an office bearer of the Association.
In the light of the said explanation I though it fit to leave
the matter at that.
H
1088 SUPREME COURT REPORTS [2011] 10 S.C.R.
7. In the meanwhile I was shocked to see Shri P.P. Rao's
name included in the Committee constituted under the
Chairmanship of Hon'ble Mr. Justice V.S. Sirpurkar. Even
before I could react to that the very same vested interests,
who are instrumental in engineering false allegations
B against me, opposed the constitution of the said
Committee. They took specific objection to the inclusion
of Shri P.P. Rao in the Committee while objecting to the
.appointment of the Chairman. It was on such opposition
that Hon'ble Mr. Justice V.S. Sirpurkar resigned as the
c Chairman of the Committee. Following suit, I expected,
keeping in mind Shri P.P. Rao's standing and reputation,
that Shri P.P. Rao would also quit the Committee.
8. In this background, it is clear that Shri P.P. Rao has
already declared me guilty of certain charges on the basis
D of which he opposed my elevation to Apex Court tooth and
nail. It is a travesty of justice that the Judges Inquiry
Committee has been so constituted with the same Shri
P.P. Rao as a sitting member of +he said Committee. This
is opposed to all principles of justice and rule of law. It is,
E in these circumstances, this petition is presented on the
following amongst the other grounds."
(emphasis supplied)
11. On the next day, i.e., 9.4.2011, the petitioner sent a
F letter to the Presiding Officer of the Committee enclosing a copy
of the representation submitted to the Chairman and requested
that decision on the same be awaited. On 20.4.2011, the
petitioner made an application to the Committee and raised
several objections against notice dated 16.3.2011 including the
G one that respondent No.3 was biased against him. After two
days, respondent No.3 sent letter dated 22.4.2011 to the
Presiding Officer of the Committee and reiterated all that he
had said in letter dated 27.1.2010 but, at the same time,
respondent No.3 specifically denied that he had pronounced
H upon the guilt of the petitioner. He also denied that the petitioner
· JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1089
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
had consulted him or that any opinion was sought and given. A
Respondent No.3 acknowledged that when news appeared
about the petitioner's name having been cleared for elevation
to the Supreme Court, he had congratulated him vide e-mail
dated 30.8.2009, referred to letter dated 19.1.2010 addressed
to the Chairman and indicated that it was his duty to recuse B
from the membership of the Committee once c.gain.
Respondent No.3 prepared a similar letter for being sent to the
Chairman, but on being advised by the Presiding Officer of the
Committee, he held back the same.
12. After considering the objections of the petitioner, the
c
Committee (respondent No.3 did not take part in the
proceedings) passed detailed order dated 24.4.2011, the
relevant portions of which are extracted below:
"According to the applicant, earlier when his name was D
recommended for appointment as a Judge of the
Supreme Court, Mr. P.P. Rao had led a delegation of
lawyers to the then Chief Justice of India to hand over a
petition opposing his elevation to the Supreme Court. He
was one of the signatories to the representation handed E
over to the then Chief Justice of India urging him not to
elevate the applicant as a Judge of the Supreme Court.
He was one of the speakers in a seminar organized by
the Bar Council of India urging the authorities against the
elevation of the applicant as a Judge of the Supreme F
Court. Mr. Rao was one of the leading personalities
spearheading the campaign against his elevation to the
Supreme Court. On those allegations, the applicant states
that he does not expect a just and fair inquiry with Mr. P. P.
Rao, being a member of the Committee.
G
Mr. P.P. Rao has the distinction that his presence on the
Committee has been, at one time or the other, objected
to by both sides and perhaps this alone, apart from
anything, else is sufficient to confirm his impartiality.
H
1090 SUPREME COURT REPORTS [2011] 10 S.C.R.
A It may "be recalied that at the very inception of the
Committee, Shri Prashant Bhushan, on behalf of one of the
groups that were agitating against the recommendation for
Justice Dinakaran's appointment as a judge of the
Supreme Court and were demanding an enquiry for his
B removal as a judge of the High Court addressed a letter
to the Chairman, Rajya Sabha objecting to the inclusion
of Mr. P.P. Rao on th~ Committee. The objection was
based on the ground that even before the notice of motion
was presented in the Rajya Sabha, leading to the formation
c of the Committee,,and while the demand to hold an enquiry
against the judge was still gaining ground Mr. Justice P.O.
Dinakaran had met and consulted Mr. Rao in the matter.
On that occasion Mr. Rao had made an offer to quit the
Committee but his offer was not accepted by the
Chairman. As the Committee proceeded with its work, with
D
Mr. Rao as one of its members, there was no complaint
or objection from any quarter. All the misgivings were
satisfied and the groups and organizations that might be
called as the initial whistle-blowers appear to be quite
comfortable with Mr. Rao on the Committee.
E
Now the objection has come from the side of the Judge
whose conduct Js the subject of enquiry.
The earlier objection was completely misconceived and
F without basis but it did not have any ulterior motive.
Unfortunately the same can not be said about the present
objection. It is clearly an after thought and has an oblique
motive.
The applicant was aware that Mr. Rao is a member of the
G Committee from the day one. As early as on May 12,
2010, he had addressed a letter to the Chairman, Rajya
Sabha urging him to have the proceedings before the
Committee expedited. In the letter, he mentioned the
names of each of the three members of the Committee,
H as it was in existence at that time, including Mr. P.P. Rao,
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1091
INQUIRY COMMITIEE & ORS. [G.S. SINGHVI, J.]
Senior Advocate but there is not a whisper of protest A
against Mr. Rao's inclusion in the Committee. Paragraph
3 of the letter reads as follows:-
"I have also learnt through print and electronic media that
a Committee, as contemplated under Section 3(b) of [The]
8
Judges (Inquiry) Act, 1968, has been constituted by Your
Excellency consisting of Hon'ble Mr. Justice V.S.
Sirpurkar, Judge, Supreme Count of India; Hon'ble Mr.
Justice A.R. Dave, the then Chief Justice, Andhra Pradesh
High Court and Mr. P.P. Rao, Sehior Advocate, jurist, in C
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."
D
Mr. Justice P.O. Dinakaran was given reply by Shri K.D.
Singh, Secretary to the Committee by his letter dated
August 4, 2010. From the letter it was evident that following
Justice Dave's elevation, the Committee was re-
constituted and Justice J.S. Khehar, who at that time was E
Chief Justice of the Uttarakhand High Court was brought
on the Committee in his p,lace. The letter went on to say
that the Committee consisting of Hon'ble Mr. Justice V.S.
Sirpurkar, Judge, Supreme Court of India, Hon'ble Mr.
Justice J.S. Khehar, Chief Justice of Uttarakhand High F
Court and Shri P.P. Rao, Senior Advocate, was examining
the Notice of Motion. Mr. Justice Dinakaran did not get
back raising any objection against Mr. Rao's presence on
the Committee. ·
On November 27, 2010, Dr. Mrs. K.M. Vinodhini G
Dinakaram, wife of Mr. Justice P.O. Dinakaran sent a letter
addressed to the three members of the Committee urging
that in connection with the enquiry her aged relatives might
not be harassed and further that the Committee should not
1092 SUPREME COURT REPORTS [2011) 10 S.C.R.
A rely upon the statements of certain persons, named in the
letter, who were inimically disposed of towards them. This
letter was sent separately to all the three members,
including Mr. P.P. Rao. This letter too, does not even
suggest any reservation about the inclusion of Mr. Rao
B in the Committee.
The objection is raised for the first time only after a notice
along with the charges and the list of witnesses and
documents in support of the charges were served upon the
Judge.
c
The stage and the time at which the objection is raised
make it clear that the object is to somehow scuttle the
enquiry by causing delay in the Committee's
proceedings."
D
(emphasis supplied)
13. Shri Amarendra Sharan, learned senior counsel for the
petitioner argued that inclusion of respondent No.3 in the
Committee constituted by the Chairman has the effect of
E vitiating the proceedings held so far because the said
respondent is biased against the petitioner. Shri Sharan
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
F being a member of the Committee and on being apprised of
the relevant facts, the Chairman should have changed the
Committee by accepting the recusal of respondent No.3.
Learned senior counsel argued that a fair, impartial and
unbiased investigation into the allegations levelled against him
G is an integral part of fundamental right to life guaranteed to the
petitioner under Articles 14 and 21 of the Constitution and he
cannot be deprived of that right by invoking the doctrine of
waiver. In support of his arguments, Shri Amarendra Sharan
relied upon the judgments of this Court in Maneka Gandhi v.
H Union of India (1978) 1 SCC 248, M.H. Hoskot v. State of
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1093
INQUIRY COMMITIEE & ORS. (G.S. SINGHVI, J.]
Maharashtra (1978) 3 SCC 544, Ranjit Thakur v. Union of A
India (1987) 4 sec 611 Triveniben v. State of Gujarat (1989)
I
1 SCC 678, R v. Bow Street Metropolitan Stipendiary
Magistrate and others, ex parte Pinochet Ugarte (No.2) (1999)
1 All ER 577 and In re: Medicaments and Related Classes of
Goods (No.2) 2001 (1) WLR 700. Learned senior counsel B
extensively referred to the dissenting view expressed by K.
Ramaswamy, J. in Krishna Swami v. Union of India and others
(1992) 4 sec 605 and argued that the propositions laid down
by the learned Judge on the issues not decided by the majority
should be treated as declaration of law by this Court for the c
purpose of Article 141 of the Constitution and the same is
binding.
14. Shri U.U. Lalit, learned senior counsel appearing for
respondent No.1 invited the Court's attention to letter dated
12.5.2010 written by the petitioner to the Vice-President and D
Chairman of the Rajya Sabha to show that even before
receiving official communication, the petitioner had become
aware of the fact that respondent No.3 was a member of the
Committee constituted under Section 3(2) of the Act. Shri Lalit
then argued that the Court should not entertain objection to the E
inclusion of respondent No.3 in the Committee on the ground
that he is biased against the petitioner because the latter did
not raise any objection in that regard till the receipt of notice
dated 16.3.2011, despite the fact that he knew that respondent
No.3 had participated in the seminar organized on 28.11.2009, F
gave a speech opposing his elevation to this Court and also
drafted a resolution to that effect. Learned senior counsel then
submitted that after meeting respondent No.3 on 6.12.2009 at
the latter's residence, the petitioner was fully satisfied that the
said respondent had nothing against him. Learned senior F
counsel also pointed out that even in the letter written by the
petitioner's wife there was no objection against respondent
No.3 being a member of the Committee on the ground that he
had pre-judged the guilt of her husband. Learned senior counsel
submitted that after reading the representations made by the H
1094 SUPREME COURT REPORTS [2011) 10 S.C.R.
A petitioner and his wife, no person of reasonable prudence can
carry an impression that the Committee of which respondent
No.3 is a member will not be able to objectively investigate into
the charges framed against the petitioner. Learned senior
counsel relied upon the judgments of this Court in Manak Lal
B v. Dr.Prem Chand Singhvi AIR 1957 SC 425, Dr. G. Sarana
v. University of Lucknow (1976) 3 SCC 585 and R.K. Anand
v. Delhi High Court (2009) 8 SCC 106 and argued that by
maintaining silence for over one year against the appointment
of respondent No.3 as member of the Committee, the petitioner
c will be deemed to have waived his right to question the
constitution of the Committee.
15. Shri Prashant Bhushan, learnea· counsel for the
intervenor also referred to letter dated 12.5.201 Oand submitted
that the petitioner did not harbour any apprehension of bias of
D respondent No.3, whose participation in the seminar was
known to him as early as in November 1999 and this was the
reason he sought appointment from the said respondent and
· argued that belated objection raised by the petitioner against
the constitution of the Committee should not be entertained.
E
16. We have thoughtfully considered the entire matter. Two
questions which arise for consideration are 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
F elevation of the petitioner to this Court are sufficient 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
G of the Committee.
17. Since a good deal of arguments were advanced by
the learned counsel on the scope of Articles 121 and 124 of
the Constitution, it may be useful to notice these Articles. Article
121 declares that no discussion shall take place in Parliament
H with respect to the conduct of any Judge of the Supreme Court
JUSTICE P. 0. DINAKARAN v. HON'BLE JUDGES 1095
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.] •
or of a High Court in the discharge of his duties except upon a A
motion presenting an address to the President for the removal
of the Judge. Article 124(4) lays down that a Judge of the
Supreme Court shall not be removed from his office except by
an order of the President passed after an address by each
House of Parliament supported by a majority of the total B
membership of that House and by a majority of not less than
two-thirds of the members of that House present and voting has
been presented to the President in the same session for such
removal on the ground of proved misbehaviour or incapacity.
Article 124(5) lays down that Parliament may by law regulate c
the procedure for the presentation of an address and for the
investigation and proof of the misbehaviour or incapacity of a
Judge under clause (4). By virtue of Article 217(1)(b), the
provision contained in Article 124(4) has been made
applicable in the matter of removal of a Judge of the High Court.
0
18. Articles 121 and 124 were interpreted by the
Constitution Bench in Sub-Committee on Judicial
Accountability vs. Union of India (1991) 4 SCC 699. In that
case, the Court considered four writ petitions filed in the
backdrop of an Inquiry Committee constituted by the then E
Speaker of the Lok Sabha to inquire into the allegations made
by 108 Members of the Ninth Lok Sabha who had prayed for
removal of Mr.Justice V. Ramaswami of this Court. In two of
the writ petitions filed by the organizations of advocates, prayer
was made for issue of a mandamus to the Union of India to F
take immediate steps to enable the Inquiry Committee to
discharge its functions under the Act and to restrain the learned
Judge from performing judicial functions and from exercising
judicial powers. In the third writ petition filed by an advocate, it
was prayed that the learned Judge should not be restrained G
from discharging his judicial functions till motion for the
presentation of address for his removal was disposed of by
both the Houses of Parliament. The fourth writ petition was also
filed by an advocate for striking down the Act on the ground
that the same was ultra vires the provisions of Articles 100, 105, H
1096 SUPREME COURT REPORTS [2011) 10 S.C.R.
A 118, 121 and 124(5) of the Constitution. He had also sought a
declaration that the motion presented by 108 Members of the
Parliament for the removal of the Judge had lapsed with the
dissolution of the Ninth Lok Sabha. Along with the four writ
petitions, the Court also transferred and disposed of Writ
B Petition (C) No.1061 of 1991 which was pending before the
Delhi High Court with prayer similar to those made in one of
the four writ petitions. The majority judgment was delivered by
B.C. Ray, J. on his behalf and on behalf of M.N. Venkatachaliah,
J.S. Verma and S.C. Agrawal, JJ. The learned Judge noticed
c the procedure prevalent in England as also the provisions
contained in Canadian, Australian and United States
Constitutions for removal of judges of Superior Courts, referred
to the resolutions passed in 19th Biennial Conference of the
International Bar Association held at New Delhi in October,
D 1982, the First World Conference on the Independence of
Justice held at Montreal on 10.6.1983, Seventh United Nations
Congress on the Prevention of Crime and the Treatment of
Offenders held at Milan in August-September, 1985, debate in
the Constituent Assembly and observed:
E "But the constitutional scheme in India seeks to achieve a
judicious blend of the political and judicial processes for
the removal of Judges. Though it appears at the first sight
that the proceedings of the Constituent Assembly relating
to the adoption of clauses (4) and (5) of Article 124 seem
F to point to the contrary and evince an intention to exclude
determination by a judicial process of .the correctness of
the allegations of misbehaviour or incapacity on a more
careful examination this is not the correct conclusion."
G The learned Judge then referred to the scheme of Articles
121 and 124 and observed:
"Accordingly, the scheme is that the entire process of
removal is in two parts - the first part under clause (5)
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1097
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
from initiation to investigation and proof of misbehaviour A
or incapacity is covered by an enacted law, Parliament's
role being only legislative as in all the laws enacted by it;
and the second part only after proof under clause (4) is in
Parliament, that process commencing only on proof in
accordance with the law enacted under clause (5). Thus B
the first part is entirely statutory while the second part alone
is the parliamentary process.
The Constitution intended a clear provision for the first part
covered fully by enacted law, the validity of which and the C
process thereunder being subject to judicial review
independent of any political colour and after proof it was
intended to be a parliamentary process. It is this synthesis
made in our Constitutional Scheme for removal of a Judge.
If the motion for presenting an address for removal is D
envisaged by Articles 121 and 124(4) 'on ground of
proved misbehaviour or incapacity' it presupposes that
misbehaviour or incapacity has been proved earlier. This
is more so on account of the expression 'investigation and
proof used in clause (5) with specific reference to clause E
(4). This indicates that 'investigation and proof' of
misbehaviour or incapacity is not within clause (4) but
within clause (5). Use of the expression 'same session' in
clause (4) without any reference to session in clause (5)
also indicates that session of House has no significance F
for clause (5) i.e., 'investigation and proof which is to be
entirely governed by the enacted law and not the
parliamentary practice which may be altered by each Lok
Sabha.
The significance of the word 'proved' before the expression G
'misbehaviour or incapacity' in clause (4) of Article 124 is
also indicated when the provision is compared with Article
317 providing for removal of a member of the Public
Service Commission. The expression in clause (1) of
Article 317 used for describing the ground of removal is H
1098 SUPREME COURT REPORTS (2011] 10 S.C.R.
A 'the ground of misbehaviour' while in clause (4) of Article
124, it is, 'the ground of proved misbehaviour or
incapacity'. The procedure for removal of a member of the
Public Service Commission is also prescribed in clause
(1) which provides for an inquiry by the Supreme Court on
B a reference made for this purpose. In the case of a Judge,
the procedure for investigation and proof is to be in
accordance with the law enacted by the Parliament under
clause (5) of Article 124. In view of the fact that the
adjudication of the ground of misbehaviour under Article
c 317(1) is to be by the Supreme Court, in the case of a
Judge who is a higher constitutional functionary, the
requirement of judicial determination of the ground is
reinforced by the addition of the word 'proved' in Article
124(4) and the requirement of law for this purpose under
Article 124(5).
D
Indeed, the Act reflects the constitutional philosophy of both
the judicial and political elements of the pr.ocess of
removal. The ultimate authority remains with the Parliament
in the sense that even if the· committee for investigation
E records a finding that the Judge is guilty of the charges it
is yet open to the Parliament to decide not to present an
address to the President for removal. But if the committee
records a finding that the Judge is not guilty, then the
political element in the process of removal has no further
F option. The law is, indeed, a civilised piece of legislation
reconciling the concept of accountability of Judges and the
values of judicial independence."
19. We may also notice Sections 3 to 6 of the Act which
G was enacted by Parliament under Article 124(5) of the
Constitution. The same read as under:
"3. Investigation into misbehaviour or incapacity of
Judge by Committee.-(1) If notice is given of a motion
for presenting an address to the President praying for the
H removal of a Judge signed,-
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1099
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
(a) in the case of a notice given in the House of the A
People, by not less than one hundred members of
that House;
(b) in the case of a notice given in the Council of
States, by not less than fifty members of that
8
Council,
then, the Speaker or, as the case may be, the
Chairman may, after consulting such persons, if any,
as he thinks fit and after considering such materials,
if any, as may be available to him , either admit the C
motion or refuse to admit the same.
(2) If the motion referred t9 in sub- section (1) is admitted,
the Speaker or, as the case may be, the Chairman shall
keep the motion pending and constitute, as soon as may D
be, for the purpose of making an investigation into the
grounds on which the removal of a Judge is prayed for, a
Committee consisting of three members of whom-
(a) one shall be chosen from among the Chief
Justices and other Judges of the Supreme Court; E
(b) one shall be chosen from among the Chief
Justices of the High Courts; and
(c) one shall be a person who is, in the opinion of, F
the Speaker or, as the case may be, the Chairman,'"' - ·
a distinguished jurist:
Provided that where notices of a motion referred to in sub-
section (1) are given on the same day in both Houses of
Parliament, no Committee shall be constituted unless the G
motion has been admitted in both Houses and where such
motion has been admitted in both Houses, the Committee
shall be constituted jointly by the Speaker and. the
Chairman:
H
1100 SUPREME COURT REPORTS (2011] 10 S.C.R.
A Provided further that where notices of a motion as
aforesaid are given in the Houses of Parliament on
different dates, the notice which is given later shall stand
rejected.
(3) The Committee shall frame definite charges against the
8
Judge on the basis of which the investigation is proposed
to be held.
(4) Such charges together with a statement of the grounds
on which each such charge is based shall be
c communicated to the Judge and he shall be given a
reasonable opportunity of presenting a written statement
of defence within such time as may be specified in this
behalf by the Committee.
D (8) The ~ommittee may, after considering the written
statement of the Judge and the medical report, if any,
amend the charges framed under sub-section (3) and in
such case, the Judge shall be given a reasonable
opportunity of presenting a fresh written statement of
defence.
E
(9) The Central Government may, if required by the
Speaker or the Chairman, or both, as the case may be,
appoint an advocate to conduct the case against the
Judge. ·
F
4. Report of Committee.-(1) Subject to any rules that may
be made in this behalf, the Committee shall have power
to regulate its own procedure in making the investigation
and shall give a reasonable opportunity to the Judge of
cross-examining witness, adducing evidence and of being
G
heard in his defence.
(2) At the conclusion of the investigation, the Committee
shall submit its report to the Speaker or, as the case may
be, to the Chairman, or where the Committee has been
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1101
INQUIRY COMMITIEE & ORS. [G.S. SINGHVI, J.]
constituted jointly by the Speaker and the Chairman, to A
both of them, stating therein its findings on each of the
charges separately with such observation on the whole
case as it thinks fit.
(3) The Speaker or the Chairman, or, where the B
Committee has been constituted jointly by the Speaker and
the Chairman, both of them, shall cause the report
submitted under sub-section (2) to be laid, as soon as may
be, respectively before the House of the People and the
Council of States.
c
5. Powers of Committee.-For the purpose of making any
investigation under this Act, the Committee shall have the
powers of a civil court, while trying a suit, under the Code
of Civil Procedure, 1908, in respect of the following matters,
namely:- D
(a) summoning and enforcing the attendance of any
person and examining him on oath;
(b) requiring the discovery and production of
documents; E
(c) receiving evidence on oath;
(d) issuing commissions for the examination of
witnesses or documents;
F
(e) such other matters as may be prescribed.
6. Consideration of report and procedure for
presentation of an address for removal of Judge.-(1)
If the report of the Committee contains a finding that the G
Judge is not guilty of any misbehaviour or does not suffer
from any incapacity, then, no further steps shall be taken
in either House of Parliament in relation to the report and
the motion pending in the House or the Houses of
Parliament shall not be proceeded with. H
1102 SUPREME COURT REPORTS [2011] 10 S.C.R.
A (2) If the report of the Committee contains a finding that
the Judge is guilty of any misbehaviour or suffers from any
incapacity, then, the motion referred to in sub-section (1)
of section 3 shall, together with the report of the
Committee, be taken up for consideration by the House
B or the Houses of Parliament in which it is pending.
(3) If the motion is adopted by each House of Parliament
in accordance with the provision of clause (4) of article
124 or, as the case may be, in accordance with that clause
read with article 218 of the Constitution, then, the
c misbehaviour or incapacity of the Judge shall be deemed
to have been proved and an address praying for the
removal of the Judge shall be presented in the prescribed
manner to the President by each House of Parliament in
the same session in which the motion has been adopted.
D "
20. An analysis of the above reproduced provisions shows
that Section 3(1) of the Act provides for admission of motion
by the Speaker or, as the case may be, the Chairman provided
E it is supported by 100 members of the House of the People or
50 members of the Council of States, as the case may be. The
Speaker or, as the case may be, the Chairman, is entitled to
consult such person, if any, as he thinks fit and to consider such
material. if any, as may be available to him. If the motion is
F admitted, the Speaker or, as the case may be, the Chairman
has to keep the motion pending and to constitute a Committee
for the purpose of making an investigation into the grounds on
which the removal of a Judge is prayed for [Section 3(2)). The
Committee constituted for the purpose of investigation shall
G consist of three members of whom - (a) one shall be chosen
from among the Chief Justice and other Judges of the Supreme
Court, (b) one shall be chosen from among the Chief Justices
of the High Courts and (c) one shall be a person who is in the
opinion of the Speaker or, as the case may be, the Chairman,
a distinguished jurist. In terms of Section 3(3), the Committee
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1103
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
is required to frame definite charges against the Judge on the A
basis of which the investigation is proposed to be held. Section
3(4) requires that the charges together with a statement of the
grounds on which each charge is based shall be communicated
to the Judge and he shall be given a reasonable opportunity of
presenting a written statement of defence. Section 3(8) deals B
with the situation where the Committee, after considering the
written statement of the Judge, decides to amend the charges.
In that event, the Judge is required to be given a reasonable
opportunity of presenting a fresh written statement of. defence.
In terms of Section 3(9), the Central Government is empowered c
to appoint an advocate to conduct a case against the Judge.
Section 4(1) declares that subject to any rules made in that
behalf, the Committee shall have power to regulate its own
procedure in making the investigation. It also lays down that the
Committee shall give a reasonable opportunity to the Judge to
0
cross-examine the witnesses, adduce evidence and be heard
in his defence. Section 4(2) provides for submission of report
by the Committee to the Speaker or, as the case may be, to ·
the Chairman. I~ also provides for submission of report both to
the Speaker and the Chairman where the Committee has been
jointly constituted by them. In terms of Section 4(3), the report E
of the Committee is required to be placed before both the
Houses of Parliament where the Committee has been
constituted jointly by the Speaker and the Chairman. Section
5 lays down that for the purpose of making investigation under
the Act, the Committee shall have powers of a Civil Court while F
trying a suit under the Code of Civil Procedure, 1908 in matters
relating to summoning of witnesses etc. Section 6(1) lays down
that if the Committee finds that the Judge is not guilty of any
misbehaviour or does not suffer from any incapacity, no further
steps should be taken in either House of Parliament. Section G
6(2) provides that if the report of the Committee contains a
finding that the Judge is guilty of any misbehaviour or suffers
from any incapacity, then the motion together with the report
shall be taken up for consideration by the House in which the
motion is pending. Section 6(3) provides that if the motion is H
1104 SUPREME COURT REPORTS [2011) 10 S.C.R.
A adopted by each House of Parliament in accordance with the
provisions of Article 124(4) or, as the case may be, in
accordance with that clause read with Article 218, then the
misbehaviour or incapacity of the Judge shall be deemed to
have been proved and an address praying for the removal of
B the Judge shall be presented in the prescribed manner to the
President by each House of Parliament in the same session
in which the motion has been adopted.
21. In the backdrop of the relevant constitutional and
statutory provisions, we shall now consider whether participation
C of respondent No.3 in the seminar organised by the Bar
Association of India where he made speech opposing the
petitioner's elevation to this Court and also drafted a resolution
to that effect can lead to an inference that he was biased
against the petitioner and he ought not to have been appointed
D as a member of the Committee in terms of Section 3(2)(c) of
the Act.
22. The consideration of the aforesaid question needs to
be prefaced by a brief reference to the nature and scope of
E the rule against bias and how the same has been applied by
the Courts of common-law jurisdiction in India for invalidating
judicial and administrative actions/orders. 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
F 'basic 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 administration of justice. Rules
of natural justice are indeed great assurances of justice an.d
G 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
established is that the doctrine of natural justice is not only to
secure justice but to prevent miscarriage of justice.
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1105
INQUIRY COMMITIEE & ORS. [G.S. SINGHVI, J.]
23. The traditional English Law recognised the following A
two principles of natural justice:
"(a) "Nemo debet esse judex in propria causa: No man
shall be a judge in his own cause, or no man can act as
both at the one and the same time - a party or a suitor and 8
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 be condemned
unheard, or that there must be fairness on the part of the C
deciding authority."
However, over the years, the Courts through out the world have
discovered new facets of the rules of natural justice and applied
them to judicial, quasi-judicial and even administrative actions/ D
decisions. At the same time, the Courts have repeatedly
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 E
to violation of the rules of natural justice.
24. In Russel v. Duke of Norfolk (1949) 1 All ER 108,
Tucker, L.J. observed:
"There are, in my view, no words which are of universal F
application to every kind of inquiry and every kind of
domestic tribunal. The requirements of natural justice must
depend on the circumstances of the case, the nature of the
inquiry, the rules under which the tribunal is acting, the
subject-matter that is being dealt with, and so forth." G
In Byrne v. Kinematograph Renters Society Limitea
(1958) 2 All ER 579, Lord Harman made the following
observations: ·
"What, then, are the requirements of natural justice in a H
1106 SUPREME COURT REPORTS [2011) 10 S.C.R.
A case of this kind? First, I think that the person accused
should know the nature of the accusation made; secondly,
that he should be given an opportunity to state his case;
and thirdly, of course, that the tribunal should act in good
faith. I do not think that there really is anything more."
B
In Union of India v. P.K. Roy AIR 1968 SC 850,
Ramaswami, J. observed:
"The extent and application of the doctrine of natur~I justice
cannot be imprisoned within the strait-jacket of a rigid
c formula. The application of the doctrine depends upon the
nature of the jurisdiction conferred on the administrative
authority, upon the character of the rights of the persons
affected, the scheme and policy of the statute and other
relevant circumstances disclosed in the particular case."
D
In Suresh Koshy George v. University of Kera/a AIR 1969
SC 198, K.S. Hegde, J. observed:
" ..........The rules of natural justice are not embodied rules.
The question whether the requirements of natural justice
E have been met by the procedure adopted in a given case
must depend to a great extent on the facts and
circumstances of the case in point, the constitution of the
Tribunal and the rules under which it functions."
F A.K. Kraipak v. Union of India (1969) 2 SCC 262
represents an important milestone in the field of administrative
law. The question which came up for consideration by the
Constitution Bench was whether Naqishbund who was a
candidate seeking selection for appointment to the All India
G Forest Service was disqualified from being a member of the
selection board. One of the issues considered by the Court was
whether the rules of natural justice were applicable to purely
administrative action. After noticing some precedents on the
subject, the Court held:
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1107
INQUIRY COMMITIEE & ORS. [G.S. SINGHVI, J.]
"The dividing line between an administrative power and a A
quasHudicial power is quite thin and is being gradually
obliterated. For determining whether a power is an
administrative power or a quasi-judicial power one has to
look to the nature of the power conferred, the person or
persons on whom it is conferred, the framework of the law B
conferring that power, the consequences ensuing from the
exercise of that power and the manner in which that power
is expected to be exercised. Under our Constitution the
rule of law pervades over the entire field of administration.
Every organ of the State under our Constitution is regulated c.
and controlled by the rule of law. In a welfare State like ours
it is inevitable that the jurisdiction of the administrative
bodies is increasing at a rapid rate. The concept of rule
of law would lose its vitality if the instrumentalities of the
State are not charged with the duty of discharging their
0
functions in a fair and just manner. The requirement of
acting judicially in essence is nothing but a requirement to
act justly and fairly and not arbitrarily or capriciously. The
procedures which are considered inherent in the exercise
of a judicial power are merely those which facilitate if not E
ensure a just and fair decision. In recent years the concept
of quasi-judicial power has been undergoing a radical
change. What was considered as an administrative power
some years back is now being considered as a quasi-
judicial power."
F
The Court then considered whether the rules of natural
justice were applicable to a case involving selection for
appointment to a particular service. The learned Attorney
General argued that the rules of natural justice were not
applicable to the process of selection. The Constitution Bench G
referred to the judgments of the Queen's Bench in re H.K. (An
infant) (1967) 2 QB 617 and of this Court in State of Orissa v.
Dr. (Miss) Binapani Dfti (1967) 2 SCR 625 and observed:
"The aim of the rules of natural justice is to secure justice
H
I
1108 SUPREME COURT REPORTS l2011] 10 S.C.R.
A or to put it negatively to prevent miscarriage of justice.
These rules can operate only in areas not covered by any
law validly made. In other words they do not supplant the
law of the land but supplement it. The concept of natural
justice has undergone a great deal of change in recent
B years. In the past it was thought that it included just two
rules namely: (1) no one shall be a judge in his own case
(Nemo debet esse judex propria causa) and (2) no
decision shall be given against a party without affording
him a reasonable hearing (audi alteram partem). Very
c soon thereafter a third rule was envisaged and that is that
quasi-judicial enquiries must be held in good faith,
without bias and not arbitrarily or unreasonably. But in the
course of years many more subsidiary rules came to be
added to the rules of natural justice. lill very recently it was
the opinion of the courts that unless the authority concerned
D
was required by the law under which it functioned to act
judicially there was no room for the application of the rules
of natural justice. The validity of that limitation is now
questioned. If the purpose of the rules of natural justice
is to prevent miscarriage of justice one fails to see why
E those rules should be made inapplicable to
administrative enquiries. Often times it is not easy to draw
the line that demarcates administrative enquiries from
quasi-judicial enquiries. Enquiries which were considered
administrative at one time are now being considered as
F quasi-judicial in character. Arriving at a just decision is the
aim of both quasi-judicial enquiries as well as
administrative enquiries. An unjust decision in an
administrative enquiry may have more far reaching effect
than a decision in a quasi-judicial enquiry. As observed
G by this Court in Suresh Koshy George v. University of
Kera/a the rules of natural justice are not embodied rules.
What particular rule of natural justice should apply to a
given case must depend to a great extent on the facts
and circumstances of that case, the framework of the law
H under which the enquiry is held and the constitution of
JUSTICE P. 0. DINAKARAN v. HON'BLE JUDGES 1109
INQUIRY COMMITIEE & ORS. [G.S. SINGHVI, J.]
the Tribunal or body of persons appointed for that A
purpose. Whenever a complaint is made before a court
that some principle of natural justice had been
contravened the court has to decide whether the
observance of that rule was necessary for a just decision
on the facts of that case." B
(emphasis supplied)
In Maneka Gandhi v. Union of India (supra), a larger
Bench of seven Judges considered whether passport of the
petitioner could be impounded without giving her notice and C
opportunity of hearing. Bhagwati, J, speaking for himself and
for Untwalia and Fazal Ali, JJ, gave a new dimension to the rule
of audi alteram partem and declared that an action taken in
violation of that rule is arbitrary and violative of Articles 14 and
21 of the Constitution. The learned Judge referred to Ridge v. D
Baldwin (1964) AC 40, State of Orissa v. Dr.(Miss) Binapani
Dei (supra), re H.K.(An Infant) (supra) and AK. Kraipak v.
Union of India (supra) and observed:
"The audi alteram partem rule is intended to inject justice E
into the law and it cannot be applied to defeat the ends of
justice, or to make the law "lifeless, absurd, stultifying, self-
defeating or plainly contrary to the common sense of the
situation". Since the life of the law is not logic but
experience and every legal proposition must, in the
F
ultimate analysis, be tested on the touchstone of pragmatic
realism, the audi alteram partem rule would, by the
experiential test, be excluded, if importing the right to be
heard has the effect of paralysing the administrative
process or the need for promptitude or the urgency of the
situation so demands. But at the same time it must be G
remembered that this is a rule of vital importance in the
field of administrative law and it must not be jettisoned
save in very exceptional circumstances where compulsive
necessity so demands. It is a wholesome rule designed
to secure the rule of law and the court should not be too H
1110 SUPREME COURT REPORTS [2011.) 10 S.C.R.
A ready to eschew it in its application to a given case. True
it is that in questions of this kind a fanatical or doctrinaire
;;ipproach shoµld be avoided, but that does not mean that
merely because the traditional methodology of a formalised
hearing may have the effect of stultifying the exercise of the
B statutory power, the audi alteram .partem should be wholly
excluded. The court must make every effort to salvage this
cardinal rule to the maximum extent permissible in a given
case. It must not be forgotten that "natural justice is
pragmatically flexible and is amenable to capsulation under
c the compulsive pressure of circumstances". The audi
alteram partem rule is not cast in a rigid mould and judicial
decisions establish that it may suffer situational
modifications. The core of it must, however, remain,
namely, that the person affected must have a reasonable
opportunity of being heard and the hearing must be a
D
genuine hearing and not an empty public relations
exercise.
A fair opportunity of being heard following immediately
upon the order impounding the passport would satisfy the
E mandate of natural justice and a provision requiring giving
of such opportunity to the person concerned can and
should be read by implication in the Passports Act, 1967.
If such a provision were held to be incorporated in the
Passports Act, 1967 by necessary implication, as we hold
F it must be, the procedure prescribed by the Act for
impounding a passport would be right, fair and just and it
would not suffer from the vice of arbitrariness or
unreasonableness. We must, therefore, hold that the
procedure "established" by the Passports Act, 1967 for
G Impounding a passport is in conformity with the
requirement of Article 21 and does not fall foul of that
article."
In Olga Tel/ls v. Bombay Municipal Corporation (1985) 3
SCC 545, the Constitution Bench dealt with the question
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1111
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.] . ,,,;;_
whether pavement and slum dwellers could be evicted without A
being heard. After adverting to various precedents on the
subject, Chief Justr~e:.Chandrachud observed:
"Just as a mala fide act has no existence in the eye of law,
even so, unreasonableness vitiates law and procedure 8
alike. It is therefore essential that the procedure
prescribed by law for depriving a person of his fundamental
right, in this case the right to life, must conform to the norms
of justice and fairplay. Procedure, which is unjust or unfair
in the circumstances of a case, attracts the vice of
unreasonableness, thereby vitiating the law which · C
prescribes that procedure and consequently, the action
taken under it. Any action taken by a public authority which
is invested with statutory powers has, therefore, to be
tested by the application of two standards: the action must
be within the scope of the authority conferred by law and D
secondly, it must be reasonable. If any action, within the
scope of the authority conferred by law, is found to be
unreasonable, it must mean that the procedure established
by law under which that action is taken is itself
unreasonable. The substance of the law cannot be E
divorced from the procedure which it prescribes for, how
reasonable the law is, depends upon how fair is the
procedure prescribed by it. Sir Raymond Evershed says
that, "from the point of view of the ordinary citizen, it is the
procedure that will most strongly weigh with him. He will F
tend to form his judgment of the excellence or otherwise
of the legal system from his personal knowledge and
experience in seeing the legal machine at work". Therefore,
"He that takes the procedural sword shall perish with the
sword." G
25. In this case, we are concerned with the application of
first of the two principles of natural justice recognized by the
traditional English Law, i.e., Nemo debet esse judex in propria
causa. This principle consists of the rule against bias or interest
and is based on three maxims: (i) No man shall be a judge in H
1112 SUPREME COURT REPORTS [2011] 10 S.C.R.
A his own cause; (ii) Justice should not only be done, but
manifestly and undoubtedly be seen to be done; and (iii)
Judges, like 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
s supposed to be indifferent to the parties to the controversy. He
cannot act as Judge of a cause in which 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
C . stuff. His mental equipoise must always remain firm and
undetected. He should not allow his personal prejudice to go
into the deci.sion-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 is in a position that a bias can be
0
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.
E 26. 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 as to subject matter
F or judicial obstinacy would vitiate the ultimate action/order/
decision.
27. In The Queen v. Rand (1866) LR 1 (Q.B.D.) 230, the
Queen's Bench was called upon to consider whether the factum
G of two justices being trustees of a hospital and a friendly society ·
respectively, each of which had lent money to the Bradford
Corporation on bonds charging the corporate fund were
disqualified from participating in the proceedings which
resulted in issue of certificate in favour of the corporation to
take water of certain streams without permission of the mill
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1113
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
owners. While answering the question in negative, Blackburn, A
J. evolved the following rule:
" ................There is ·no doubt that any direct pecuniary
interest, however small, in the subject of inquiry, does
disqualify a person from acting as a judge in the matter; 8
and if by any possibility these gentlemen, though mere
trustees, could have been liable to costs, or to other
pecuniary loss or gain, in consequence of their being so,
we should think the question different from what it is: for
that might be held an interest. But the only way in which C
the facts could affect their impartiality, would be that they
might have a tendency to favour those for whom they were
trustees; and that is an objection not in the nature of
interest, but of a challenge to the favour. Wherever there
is a real likelihood that the judge would, from kindred or-
any other cause, have a bias in favour of one of the parties, D
it would be very wrong in him to act; and we are not to be
understood to say, that where there is a real bias of this
sort this Court would not interfere; but in the present case
there is no ground for doubting that the justices acted
perfectly bona fide; and the only question is, whether in E
strict law, under such circumstances, the certificate of such
justices is void, as it would be if they had a pecuniary
interest; and we think that Reg. v. Dean of Rochester (1)
is an authority, that circumstances, from which a suspicion
of favour may arise, do not produce the same effect as a F
peCun1•ary meres•t t ........... .
II
28. In Rex v. Sussex Justices, Ex Parte McCarthy (1924)
1 KB 256, Lord Hewart, CJ., evolved the rule that justice should
not only be done, but manifestly and undoubtedly be seen to G
be done. The facts of that case were that on August 21, 1923,
a collision took place between a motor cycle driven by the
applicant and a motor cycle and side-car driven by one
Whitworth, and it was alleged that the latter and his wife
sustained injuries in the collision. In respect of those injuries H
1114 SUPREME COURT REPORTS [2011] 10 S.C.R.
A Messrs Langham, Son & Douglas, solicitors, Hastings, by a
letter dated August 28, 1923, made a claim on behalf of
Whitworth against the applicant for damages, and the police,
after making inquiries into the circumstances of the collision,
applied for and obtained a summon against the applicant for
B driving his motor cycle in a manner dangerous to the public. At
the hearing of that summon on September 22, 1923, the
applicant's solicitor, who stated in his affidavit that he had no
knowledge of the officials of the court, inquired whether Mr. F.G.
Langham, the clerk to the justices and a member of the said
c firm of Langham, Son & Douglas, was then sitting as clerk, and
was informed that he was not, but had appointed a deputy for
that day. The case was then heard, and at the conclusion of
the evidence the justices retired to consider their decision, the
deputy clerk retiring with them. When the justices returned into
D court they intimated that they had decided to convict the
applicant, and they imposed a fine of 10 lakh and costs.
Thereupon, the applicant's solicitor brought to the notice of the
justices the fact, of which he said he had only become aware
when the justices retired, that the deputy clerk was a brother of
Mr. F.G. Langham, and was himself a partner in the firm of
E Langham, Son & Douglas, and so was interested as solicitor
for Whitworth in the civil proceedings arising out of the collision
in respect of which they had convicted the applicant. The
solicitor in his affidavit stated that had he known the above facts
he would have taken the objection before the case began. This
F rule was thereafter obtained on the ground that it was irregular
for the deputy clerk in the circumstances to retire with the
justices when considering their decision. The King's Bench
quashed the conviction on the ground of bias. Lord Hewart C.J.,
posed the following question:
G
" ..............The question therefore is not whether in this
case the deputy clerk made any observation or offered any
criticism which he might not properly have made or offered;
the question is whether he was so related to the case in
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1115
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
its civil aspect as to be unfit to act as clerk to the justices A
in the criminal matter ............ ."
He then proceeded to observe:
• ......................The answer to that question depends not B
up.on what actually was done but upon what might appear
to be done. Nothing is to be done which creates even a
suspicion that there has been an improper interference
with the course of justice. Speaking for myself, I accept the
statements contained in the justices' affidavit, but they
show very clearly that the deputy clerk was connected with C
the case in a capacity which made it right that he should
scrupulously abstain from referring to the matter in any
way, although he retired with the justices; in other words,
his one position was such that he could not, if he had been
required to do so, discharge the duties which his other D
position involved. His twofold position was a manifest
contradiction. In those circumstances I am satisfied that
this conviction must be quashed, unless it can be shown
that the applicant or his solicitor was aware of the point
that might be taken, refrained from taking it, and took his E
chance of an acquittal on the facts, and then, on a
conviction being recorded, decided to take the
point. ........... "
29. In Regina v. Camborne Justices Ex parte Pearce
(1955) 1 QB 41, the Divisional Court of Queen's Bench Division
F
after reviewing large number of authorities including Rex v.
Sussex Justices, Ex parte McCarthy (supra) and held that "
real likelihood was the proper test, and that a real likelihood of
bias had to be made to appear not only from the materials in
fact ascertained by the party complaining, but from such further G
facts as he might readily have ascertained and easily verified
in the course of his inquiries." The issue which arose for
consideration in that case was whether the conviction of Henry
Pearce was vitiated on four grounds including the one that
throughout the hearin~ Mr. Donald Woodroffe Thomas, $Olicitor. H
1116 SUPREME COURT REPORTS [2011) 10 S.C.R
A acted as clerk to the justices and was called into their private
room for the purpose of advising them, although he was at the
time a councilor member of the council. The facts of that case
were as follows:
"On January 27, 1948, the Public Health and Housing
B
Committee (later known as the Health Committee) of the
council recommended that the authority of the council
should be given to its sampling officers to institute
proceedings under the Food and Drugs Act, 1938. On
February 24, 1948, the council adopted this
c recommendation. Since that date each of the council's
sampling officers, including Rundle, had from time to time
been given authorities under the seal of the council
appointing them inspectors and authorized officers of the
council under the Food and Drugs Acts and expressly
D authorizing them to institute, on behalf of the council,
proceedings under the Acts before any court of summary
jurisdiction. On June 20, 1952, a fresh sealed authority was
given to Rundle and the other sampling officers, being an
extension of the earlier authorities, and this sealed
E authority was in force at all material times. This authority
empowered the sampling officers to institute proceedings
under, inter alia, the Food and Drugs Acts in their own
discretion and without seeking any specific authority from
the council to do so, and it became the practice for the
F chief sampling officer to report to the Health Committee
the action his subordinates had in fact taken. On January
4, 1954, Rundle laid the two informations against the
applicant. On January 19, 1954, the chief sampling officer
reported to the Health Committee that such proceedings
G were pending against the applicant.
On February 23, 1954, the council received and adopted
the report of its Health Committee dated January 19, 1954.
On April 13, 1954, the chief sampling officer reported to
the Health Committee the result of the proceedings against
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1117
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
the applicant. On May 11, 1954, the council received and A
adopted the report of its Health Committee dated April 13.
1954. Mr. Thomas was not present at any of the aboile-
mentioned four meetings and indeed was never a member
of the Health Committee or its predecessor, the Public
Health and Housing Committee. Rundle laid the two B
informations in the exercise of his own discretion and upon
his own responsibility in pursuance of the power conferred
upon him by his sealed authority. Mr. Thomas was
appointed clerk to the justices for the East Penwith
Division of Cornwall on December 30, 1931. He was c
elected a member of Cornwall County Council on April 22,
1937. He acted as clerk to the justices during the trial of
the applicant upon the informations at the Camborne
Magistrates' Court on January 26, 1954. He did not retire
with the justices while they were considering their verdict, D
but was later sent for by the chairman, who requested him
to advise the justices upon a point of law. During the short
time that he was with them the justices did not discuss the
facts of the case at all, and having given his advice on the
point of law he returned to court. Some appreciable time
later the justices returned and gave their decision. At the E
hearing the applicant pleaded "Not Guilty." The prosecution
was conducted by a solicitor in the full-time employment
of the Cornwall County Council. The applicant was
represented by counsel, instructed by his solicitors,
Messrs. Stephens & Scown of St. Austell. An articled clerk, F
Mr. Philip Stephens {who was not related to any partner
in the firm) attended counsel at the hearing on behalf of
that firm. Neither the applicant, nor counsel, nor the articled
clerk was aware at that time that the clerk to the justices
was a member of the Cornwall County Council though that G
fact was well known to Mr. William Garfield Scown, the
partner in the firm who had the conduct of the applicant's
defence.
During the six years from 1948 to 1953 inclusive some 660 H
1118 SUPREME COURT REPORTS [2011] 10 S.C.R.
A prosecutions by the Cornwall County Council were heard
. and determined by the East Penwith Magistrates' Court
at which either Mr. Thomas or the deputy clerk to the
justices, Mr. Garfield Uren, acted as clerk to the justices;
yet so far as was known no previous objection had ever
B been made because Mr. Thomas acted as clerk to the
justices during the hearing of an information by or on behalf
of the Cornwall County Council. There was no allegation
that Mr. Thomas attempted in any way improperly to
influence the justices in their decision on January 26,
c 1954."
The question posed in that case was "what interest in "a
judicial or quasi-judicial proceeding does the law regard as
"sufficient to incapacitate a person from adjudicating or
assisting "in adjudicating on it upon the ground of bias or
D appearance of "bias?" It is, of course, clear that any direct
pecuniary or proprietary interest in the subject-matter of a
proceeding, however small, operates as an automatic
disqualification .. Jn such a case the law assumes bias. What
interest short of th~t will suffice? The Divisional Court referred
E to judgment of Blackburn, J. in The Queen v. Rand (supra), in
which the test of real likelihood of bias was evolved, Lord Esher
M.R. in Eckersley v. Mersey Docks and Harbour Board (1894)
2 QB 667, Rex v. Justices of County Cork (1910) 2 JR 271,
Rex v. Sussex Justices, Ex parte McCarthy (supra), Frame
F United Breweries Company v. Bath Justices, (1926) AC 586,
Rex v. Essex Justices, Ex parte Perkins (1927) 2 KB 475 and
held:
"In the judgment of this court the right test is that
prescribed by Blackbum J., namely, that to disqualify a
G
person from acting in a judicial or quasi-judicial capacity
upon the ground of interest (other than pecuniary or
proprietary) in the subject-matter of the proceeding, a real
likelihood of bias must be shown. This court is further of
opinion that a real likelihood of bias must be made to
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1119
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
appear not only from the materials in fact ascertained by · A
the party complaining, but from such further facts as he
might readily have ascertained and easily verified in the·
course of his inquiries.
In the present case, for example, the facts relied on in the
8
applicant's statement under R.S.C., Ord. 59, r. 3 (2), might
create a more sinister impression than the full facts as
found by this court, all or most of which would have been
available to the applicant had he pursued his inquiries upon
learning that Mr. Thomas was a member of the Cornwall C
County Council, and none of these further facts was
disputed at the hearing of this motion.
The frequency with .which allegations of· bias have come
before the courts in recent times seems to indicate that
Lord Hewart's reminder in the Sussex Justices case that D
it "is of fundamental " importance that justice should not only
be done, but should "manifestly and undoubtedly be seen
to be done "is being urged as a warrant for quashing
convictions or invalidating orders upon quite unsubstantial
grounds and, indeed, in some cases upon the flimsiest E
pretexts of bias. Whilst indorsing and fully maintaining the
integrity of the principle reasserted by Lord Hewart, this
court feels that the continued citation of it in cases to which
it is not applicable may lead to the erroneous impression
that it is more important that justice should appear to be F
done than that it should in fact be done."
(emphasis supplied)
30. In Metropolitan Properties (FGC) Ltd. v. Lannon
(1969) 1 QB 577, the Court of Appeal applied suspicion test G
and reasserted 'justice must be seen to be done' as the
operative principle.
31. In R v. Gough (1993) AC 646, the House of Lords
applied the 'real likelihood' test by using the expression 'real
H
1120 SUPREME COURT REPORTS [2011) 10 S.C.R.
A danger'. Two portions of the leading speech given by Lord Goff
are extracted below: .,
"In my opinion, if the circumstances of the case (as
ascertained by the court), it appears that there was a real
likelihood, in the sense of a real possibility, of bias on the
B
part of a justice or other member of an inferior tribunal,
justice requires that the decision should not be allowed to
stand. I am by no means persuaded that, in its original
form, the real likelihood test required that any more rigorous
criterion should be applied. Furthermore the test as so
c stated gives sufficient effect, in cases of apparent bias, to
the principle that justice must manifestly be seen to be
done, and it is unnecessary, in my opinion, to have
recourse to a test based on mere suspicion, or even
reasonable suspicion, for that purpose"
D
"In conclusion, I wish to express my understanding of the
law as follows. I think it possible, and desirable, that the
same test should be applicable in all cases of apparent
bias, whether concerned with justices or members of other
E inferior tribunals, or with jurors, or with arbitrators. Likewise
I consider that, in cases concerned with jurors, the same
test should be applied by a judge to whose attention the
possibility of bias on the part of a juror has been drawn in
the course of a trial, and by the Court of Appeal when it
F considers such a question on appeal. Furthermore, I think
it unnecessary, in formulating the appropriate test, to
require that the court should look at the matter through
the eyes of a reasonable man, because the court in
cases such as th.ese personifies the reasonable man;
and in any event the court has first to ascertain the
G
relevant circumstances from the available evidence,
knowledge of which would not necessarily be available
to an observer in court at the relevant time. Finally, for
the avoidance of doubt, I prefer to state the test in terms
of real danger rather than real likelihood, to ensure that
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1121
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
the court is thinking in terms of possibility rather than A
probability of bias~ Accordingly, having ascertained the
relevant circumstances, the court should ask itself
whether, having regard to those circumstances, there was
a real danger of bias on the part of the relevant member
of the tribunal in question, in the sense that he might B
unfairly regard (or have unfairly regarded) with favour, or
disfavour, the case of a party to the issue under
consideration by him .... •
{emphasis supplied) C
32. In R v. Bow Street Metropolitan Stipendiary Magistrate
and others, ex parte Pinochet Ugarte (No.2) {supra), the House
of Lords considered the question whether the factum of one of
the Law Lords, who was a director and chairperson of Amnesty
International Charity Limited, was disqualified from being a D
party in the proceedings of an appeal in which Amnesty
International was granted leave to intervene. In that case,
Senator Augusto Pinochet Ugarte applied for setting aside the
decision of the House of Lords whereby the appeal of the
Commissioner of Police of the Metropolis and the Government E
of Spain was allowed and the decision of the Queen's Bench
Divisional Court quashing the provisional warrant issued for the
arrest of the petitioner was set aside. The ground on which
review of the decision was sought was that Lord Hoffmann, who
constituted the majority of the House of Lords, was biased F
because he was a director and chairperson of Amnesty
International Charity Limited. Lord Browne-Wilkinson, with whom
other members of the Berich agreed, noted that neither Senator
Pinochet nor his legal advisors were aware of any connection
between Lord Hoffmann and Amnesty International until after.the
judgment was delivered on 25.11.1998 in the main case'and G
the appeal filed against the judgment of the Queen's Bench
Divisional Court was allowed by a majority of three to two. After
the judgment, relationship of Lord Hoffmann and his wife with
Amnesty International and its constituents were revealed. Lord
H
1122 SUPREME COURT REPORTS [2011) 10 S.C.R.
A Browne-Wilkinson noted that there was no allegation that Lord
Hoffmann was in fact biased but the argument was that there
was a real danger or reasonable apprehension or suspicion
that Lord Hoffmann might have been biased and proceeded
to observe:
B
"The fundamental principle is that a man may not be a
judge in his on cause. This principle, as developed by the
courts, has two very similar but not identical implications.
First it may be applied literally: if a judge is in fact a party
to the litigation or has a financial or proprietary interest in
c its outcome then he is indeed sitting as a judge in his own
cause. In that case, the mere fact that he is a party to the
action or has a financial or proprietary interest in its
outcome is sufficient to cause his automatic
disqualification. The second application of the principle is
D where a judge is not a party to the suit and does not have
a.financial interest in itS outcome, but in some other way
his conduct or behaviour may give rise to a suspicion that
he is not impartial, for example because of his friendship
·with a party. This second type of case is not strictly
E speaking an application of the principle that a man must
not be judge in his own cause, since the judge will not
normally be himself benefiting, but providing a benefit for
another by failing to be impartial.
In my judgment, this case falls within the first category of
F case, viz where the judge is disqualified because he is a
judge in his own cause. In such a case, once it is shown
that the judge is himself a party to the cause, or has a
relevant interest in its subject matter, he is disqualified
without any investigation into whether there was a
G . likelihood or suspicion of bias. The mere fact of his interest
is sufficient to disqualify him unless he has made sufficient
disclosure: see Shetreet Judges on Trial (1976) p 303 and
De Smith, Woolf and Jowell Judicial Review of
Administrative Action (5th edn, 1995) p 525. I will call this
H 'automatic disqualification'.
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1123
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
)()()( )()()( )()()( )()()( A
The importance of this point in the present case is this.
Neither Al, nor AICL, have any financial interest in the
outcome of this litigation. We are here confronted, as was
Lord Hoffmann, with a novel situation where the outcome
8
of the litigation did not lead to financial benefit to anyone.
The interest of Al in the litigation was not financial; it was
its interest in achieving the trial and possible conviction of
Senator Pinochet. for crimes against humanity.
By seeking to intervene in this appeal and being allowed C
so to intervene, in practice· Al became a party to the
appeal. Therefore if, in the circumstances, it is right to treat
Lord Hoffmann as being the alter ego of Al and therefore
a judge in his own cause, then he must have been
automatically disqualified on the grounds that he was a D
party to the appeal. Alternatively, even if it be not right to
say that Lord Hoffmann was a party to the appeal as such,
the question then arises whether, in non-financial litigation,
anything other than a financial or proprietary interest in the
outcome is sufficient automatically to disqualify a man from E
sitting as judge in the cause.
Are the facts such as to require Lord Hoffmann to be
treated as being himself a party to this appeal? The facts
are striking and unusual. One of the parties to the appeal
is an unincorporated association, Al. One of the constituent F
parts of that unincorporated association is AICL. AICL was
established, for tax purposes, to carry out part of the
functions of Al-those parts which were charitable-which
had previously been carried on either by Al itself or by AIL.
Lord Hoffmann is a director and chairman of AICL, which G
is wholly controlled by Al, since its members (who
ultimately control it) are all the members of the international
executive committee of Al. A large part of the work of Al
is, as a matter of strict law, carried on by AICL which
instructs AIL to do the work on its behalf. In reality, Al, AICL H
1124 SUPREME COURT REPORTS [2011] 10 S.C.R.
A and AIL are a close-knit group carrying on the work of Al.
However, close as these links are, I do not think it would
be right to identify Lord Hoffmann personally as being a
party to the appeal. He is closely linked to Al but he is not
in fact Al. Although this is an area in which legal technicality
B
is particularly to be avoided, it cannot be ignored that Lord
Hoffmann took no part in running Al. Lord Hoffmann, AICL
and the executive committee of Al are in law separate
people.
c Then is this a case in which it can be said that Lord
Hoffmann had an 'interest' which must lead to his
automatic disqualification? Hitherto only pecuniary and
proprietary interests have led to automatic disqualification.
But, as I have indicated, this litigation is most unusual. It
D is not civil litigation but criminal litigation. Most unusually,
by allowing Al to intervene, there is a party to a criminal
c:;ause or matter who is neither prosecutor nor accused.
That party, Al, shares with the government of Spain and
the CPS, not a financial interest but an interest to establish
E that there is no immunity for ex-heads of state in relation
to crimes against humanity. The interest of these parties
is to procure Senator Pinochet's extradition and trial-a
non-pecuniary interest. So far as AICL is concerned, cl (c)
of its memorandum provides that one of its objects is 'to
procure the abolition of torture, extra-judicial execution and
F
disappearance'. Al has, amongst other objects, the same
objects. Although AICL, as a charity, cannot campaign to
change the law, it is concerned by other means to procure
the abolition of these crimes against humanity. In my
opinion, therefore, AICL plainly had a non-pecuniary
G
interest, to establish that Senator Pinochet was not
immune.
That being the case, the question is whether in the very
unusual circumstances of this case a non-pecuniary
H interest to achieve a particular result is sufficient to give
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1125
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
rise to automatic disqualification and, if so, whether the A
fact that A/CL had such an interest necessarily leads to
the conclusion that Lord Hoffmann, as a director of A/CL,
was automatically disqualified from sitting on the appeal?
My Lords, in my judgment, although the cases have all
dealt with automatic disqualification on the grounds of B
pecuniary interest, there is no good reason in principle
for so limiting automatic disqualification. The rationale of
the whole rule is that a man cannot be a judge in his own
cause. In civil litigation the matters in issue will normally
have an economic impact; therefore a judge is c
automatically disqualified if he stands to make a financial
gain as a consequence of his own decision of the case.
But if, as in the present case, the matter at issue does
not relate to money or economic advantage but is
concerned with the promotion of the cause, the rationale
0
disqualifying a judge applies just as much if the judge's
decision will lead to the promotion of a cause in which
the judge is involved together with one of the parties.
Thus in my opinion if Lord Hoffmann had been a
member of Al he would have been automatically
disqualified because of his non-pecuniary interest in E
establishing that Senator Pinochet was not entitled to
Immunity. Indeed, so much I understood to have been
conceded by Mr Duffy.
Can it make any difference that, instead of being a direct F
member of Al, Lord Hoffmann is a director of AICL, that is
of a company which is wholly controlled by Al and is
carrying on much of its work? Surely not. The substance
of the matter is that Al, AIL and AICL are all various parts
of an entity or movement working in different fields towards G
the same goals. If the absolute impartiality of.the judiciary
is to be maintained, there must be a rule which
automatically'' disqualifies a judge who is involved, whether
personally or as a director of a company, in promoting the
same causes in the same organisation as is a party to the H
1126 SUPREME COURT REPORTS [2011] 10 S.C.R.
A suit. There is no· room for fine distinctions if Lord Hewart
CJ's famous dictum is to be observed: it is 'of fundamental
importance that justice should not only be done, but should
manifestly and undoubtedly be seen to be done'."
(emphasis supplied)
B
33. In re Medicaments and Related Classes of Goods
(No.2) (supra), the Court of Appeal set aside the decision of
the Restrictive Practices Court on the ground of real danger
of bias by making the following observations:
c
" ......... The court had first to ascertain all the
circumstances which had a bearing on the suggestion that
the judge was biased and then ask whether those
circumstances would lead a fair-minded and informed
observer to conclude that there was a real possibility, or
D
a real danger, the two being the same, that the judge was
biased; that the material circumstances included any
explanation given by the impugned judge as to his
knowledge or appreciation of those circumstances and
where any such explanation was disputed the reviewing
E court did not have to rule whether the explanation should
be accepted or rejected but rather had to decide whether
the fair-minded observer would consider that there was a
real danger of bias notwithstanding the explanation
advanced; that instead of determining whether R's
F statement was truthful the court should have considered
what impression her conduct, including her explanation for
it, would have had on a fair-minded observer; that such an
observer would not have been convinced that all prospects
of R working for the firm at some time in the future had
G been destroyed or that she might not still hope to work for
them in due course; that, in those circumstances, the fair-
qiinded observer would apprehend that there was a real
danger that R would be unable to make an objective and
impartial appraisal of the expert evidence placed before
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1127
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
the court by the firm; and that, accordingly, R ought to have A
recused herself and the other members of the court should
stand down."
34. It is, thus, evident that the English Courts have applied
different tests for deciding whether non-pecuniary bias would
B
vitiate judicial or quasi judicial decision. Many judges have laid
down and applied the 'real likelihood' f~rmula, 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
employed a 'reasonable suspicion' test, emphasizing that
justice must be seen to be done, and, that no person should C
adjudicate in any way if it might reasonably be thought that he
ought not to act because of some personal interest. The
Constitutional Court of South Africa has, in President of the
Republic of South Africa v: South African Rugby Football
Union 1999 (4) SA 147 while holding that onus of establishing D
that there was ground for recusal of the members of the Court
was on the applicant, made the following significant
observations:
" ............ The question is whether a reasonable, objective E
and informed person would on the correct facts reasonably
apprehend that the judge has not or will not bring an
impartial mind to bear on the adjudication of the case, that
is a mind open to persuasion by the evidence and the
submissions of counsel. The reasonableness of the
F
apprehension must be assessed in the light of the oath of
office taken by the judges to administer justice without fear
or favour; and their ability to carry out that oath by reason
of their training and experience. It must be assumed that
they can disabuse their minds of any irrelevant personal
beliefs or predispositions. They must take into account the G
fact that they have a duty to sit in any case in which they
are not obliged to recuse themselves. At the same time,
it must never be forgotten that an impartial judge is a
fundamental prerequisite for a fair trial and a judicial officer
H
1128 SUPREME COURT REPORTS [2011) 10 S.C.R.
A should not hesitate to recuse herself or himself if there are
reasonable grounds on the part of a litigant for
apprehending that the judicial officer, for whatever reasons,
was not or will not be impartial."
The High Court of Australia has adopted a different
B approach, as is evident from the judgment of seven-Judge
Bench in Johnson v. Johnson (2000) 174 Australian Law
Reports 655. The parties to the appeal were married in
November 1979. The marriage was dissolved in 1996. The
proceedings before Anderson, J. arose out of a dispute as to
C the financial arrangements to be made following such
dissolution. There was a substantial amount at stake. It was held
that there was what the Full Court described as an "asset pool"
valued at nearly $30m. Anderson, J. decided that the
respondent (the wife) should receive 40% of that pool. One of
D the principal areas of dispute at the trial, which lasted for 66
days, concerned the extent of the appellant's assets and, in
particular, whether he was beneficially interested in substantial
offsh,ore assets owned by other persons and entities. It is
unnecessary to go into the detail of that dispute. What is
E important is that, at the trial, the respondent was asserting, and
the appellant was denying, that the appellant was beneficially
interested in various assets, and the investigation of that issue
of fact involved a great deal of hearing time. On the 20th day
of the hearing, Anderson, J. made a comment which resulted
F in an application by counsel for the appellant that he should
disqualify himself. Anderson, J. declined the application. The
Full Court of the Family Court upheld his decision. Five
members of the Bench speaking through Gleeson, C.J.,
referred to the test applied in Australia in determining whether
G a Judge was disqualified by reason of the appearance of bias,
i.e. whether a fair-minded lay observer might reasonably
apprehend that the Judge might not bring an impartial and
unprejudiced mind to the resolution of the question require to
be decided and gave the following reasons for making a
H departure from the test applied in England:
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1129
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
"That test has been adopted, in preference to a differently A
expressed test that has been applied in England, for the
reason that it gives due recognition to the fundamental
principle that justice must both be done, and be seen to
be done. It is based upon the need for public confidence
in the administration of justice. "If fair-minded people B
reasonably apprehend or suspect that the tribunal has
prejudged the case, they cannot have confidence in the
decision." The hypothetical reasonable observer of the
judge's conduct is postulated in order to emphasise that
the test is objective, is founded in the need for public c
confidence in the judiciary, and is not based purely upon
the assessment by some judges of the capacity or
performance of their colleagues. At the same time, two
things need to be remembered: the observer is taken to
be reasonable; and the person being observed is "a 0
professional judge whose training, tradition and oath or
affirmation require [the judge) to discard the irrelevant, the
immaterial and the prejudicial"."
In his separate opinion, Kirby J. referred to the judgments
of the House of Lords in R v. Gough (supra) as also R v. Bow E
Street Metropolitan Stipendiary Magistrate and others, ex
parte Pinochet Ugarte (No. 2) (supra) and observed:
"It is a "fundamental rule" of natural justice and an "abiding
value of our legal system" that every adjudicator must be F
free from bias. This same principle has been accepted in
the international law of human rights, which supports the
vigilant approach this court has taken to the possibility that
the "parties or the public might entertain a reasonable
apprehension" that an adjudicator may not be impartial. G
Thus, Art 14. 1 of the International Covenant on Civil and
Political Rights, the starting point for consideration of the
relevant requirements of international law, slates:
. .
All persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him, H
1130 SUPREME COURT REPORTS [2011) 10 S.C.R.
A or of his rights and obligations in a suit al law, everyone
shall be entitled to a fair and public hearing by a
competent independent and impartial tribunal
established by law.
In Karttunen v Finland, elaborating that Article, the United
B
Nations Human Rights Committee concluded that
"impartiality" of a court:
... implies that judges must not harbour preconceptions
about the matter put before them, and ... they must not
c act in ways that promote the interests of one of the parties
... A trial flawed by the participation of a judge who, under
domestic statutes, should have been disqualified cannot
normally be considered to be fair or impartial within the
meaning of article 14.
D
Appearance of justice: The reason commonly given for
adopting the comparatively strict approach that has found
favour in this court in recent years is that it mirrors the
importance attached by the law not only to the actuality of
justice (that is, whether the adjudicator had, in fact,
E
prejudged issues in the case) but also the appearance of
impartiality both to the parties and to the community. From
the point of view of public policy, the practical foundation
for a relatively strict approach lies in the obligation on an
appellate court to defend the purity of the administration
F of justice and thereby to sustain the community's
confidence in the system. In the words of Lorri Denning
MR. "justice must be rooted in confidence: and
confidence is destroyed when right-minded people go
away thinking: 'The judge was biased'."
G
(emphasis supplied)
35. In India, the Courts have, by and large, applied the 'real
likelihood test' for deciding whether a particular decision of the
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1131
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
judicial or quasi judicial body is vitiated due to bias. In Manak A
Lal v. Dr. Prem Chand Singhvi (supra), it was observed:
"Every member of a tribunal that sits to try issues in judicial
or quasi-judicial proceedings must be able to act judicially;
and the essence of judicial decisions and judicial
8
administration is that judges should be able to act
impartially, objectively and without any bias. In such cases
the test is not whether in fact a bias has affected the
judgment; the test always is and must be whether a litigant
could reasonably apprehend that a bias attributable to a
member of the tribunal might have operated against him C
in the final decision of the tribunal. It is in this sense that it
is often said that justice must not only be done but must
also appear to be done."
36. In A.K. Kraipak v. Union of India (supra), the rule of o
bias was discussed in some detail in the context of selection
for appointment to the Indian Forest Service. Although,
Naqishbund who was a candidate for selection to the All India
Forest Service and was also a member of the selection board
did not sit in the selection board at the time of his name was E
considered but participated in its deliberations when the names
of other candidates, who were his rivals were considered. Two
important questions considered by the Court were whether the
rules of natural justice were applicable in cases involving
exercise of administrative power ~y the public authorities and
F
whether the selection was vitiated due to bias. The Court
answered both the questions in affirmative. While answering the
second question, the Court noteg that even though Naqishbund
had not participated in the deliberations of the committee when
his name was considered, but he was present when the claims
of rivals were considered and observed: G
"At every stage of his participation in· the deliberations of
the selection board there was a conflict between his
interest and duty. Under those circumstances it is difficult
to believe that he could have been impartial. The real H
1132 SUPREME COURT REPORTS [2011] 10 S.C.R.
A question is not whether he was biased. It is difficult to prove
the state of mind of a person. Therefore what we have to
see is whether there is reasonable ground for believing that
he was likely to have been biased ......... In deciding the
question of bias we have to take into consideration human
8 probabilities and ordinary course of human conduct."
37. In S. Parthasarthi v. State of A.P. (1974) 3 SCC 459,
Mathew, J. applied the 'real likelihood test' and restored the
decree passed by the trial Court which invalidated compulsory
retirement of the appellant by way of punishment. In paragraph
C 16 of the judgment, Mathew, J. observed:
" .......... We think that the reviewing authority must make
a determination on the basis of the whole evidence before
it, whether a reasonable man would in the circumstances
D infer that there is real likelihood of bias. The Court must
look at the impression which other people have. This
follows from the principle that justice must not only be done
but seen to be done. If right minded persons would think
that there is real likelihood of bias on the part of an
inquiring officer, he must not conduct the enquiry;
E
nevertheless, there must be a real likelihood of bias.
Surmise or conjecture would not be enough. There must
exist circumstances from which reasonable men would
think it probable or likely that the inquiring officer will be
prejudiced against the delinquent. The Court will not inquire
F
whether he was really prejudiced. If a reasonable man
would think on the basis of the existing circumstances that
he is likely to be prejudiced, that is sufficient to quash the
decision ...... "
G 38. In Dr. G. Sarana v. University of Lucknow (supra), the
Court referred to the judgments in AK. Kraipak v. Union of
India (supra), S. Parthasarthi v. State of A.P. (supra) and
observed:
" ......... the real question is not whether a member of an
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1133
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
administrative board while exercising quasi-judicial A
powers or discharging quasi-judicial functions was biased,
for it is difficult to prove the mind of a person. What has to
be seen is whether there is a reasonable ground for
believing that he was likely to have been biased. In
deciding the question of bias, human probabilities and B
ordinary course of human conduct have to be taken into
consideration ............ "
39. In Ashok Kumar Yadav v. State of Haryana (1985) 4
SCC 417, the Court while reiterating that the judgment in AK. C
Kraipak's case represents an important landmark in the
development of administrative law and has contributed in a
large measure to the strengthening of the rule of law, made a
significant departure in cases involving selection by the Public
Service Commissions. All this is; evident from paragraph 18 of
the judgment, which is extracted below: E>
"18. We must straightaway point out that A.K. Kaipak case
is a landmark in the development of administrative law and
it has contributed in a large measure to the strengthening
of the rule of law in this country. We would not like to whittle E
down in the slightest measure the vital principle laid down
in this decision which has nourished the roots of the rule
of law and injected justice and fair play into legality. There
can be no doubt that if a Selection Committee is
constituted for the purpose of selecting candidates on F
merits and one of the members of the Selection
Committee is closely related to a candidate appearing for
the selection, it would not be enough for such member
merely to withdraw from participation in the interview of the
candidate related to him but he must withdraw altogether G
from the entire selection process and ask the authorities
to nominate another person in his place on the Selection
Committee, because otherwise all the selections made
would be vitiated on account of reasonable likelihood of
bias affecting the process of selection. But the situation H
1134 SUPREME COURT REPORTS [2011] 10 S.C.R.
A here is a little.different because the selection of candidates
to the Haryana Civil Service (Executive) and Allied
Services is being made not by any Selection Committee
constituted for that purpo'se but it is being done by the
Haryana Public Service Commission which is a
B Commission set up under Article 316 of the Constitution.
It is a Commission which consists of a Chairman and a
specified number of members and is a constitutional
authority. We do not think that the principle which requires
that a member of a Selection Committee whose close
c relative is appearing for selection should decline to
become a member of the Selection Committee or
withdraw from it leaving it to the appointing authority to
nominate another person in his place, need be applied
in case of a constitutional authority like the Public
Service Commission, whe.ther Central or State. If a
D
member of a Public Service Commission were to withdraw
altogether from the selection process on the ground that
a close relative of his is appearing for selection, no other
person save a member can be substituted in his place.
And it may· sometimes happen that no other member is
E
available to take the place of such member and the
functioning of the Public Service Commission may be
affected. When two or more members of a Public Service
Commission are holding a viva voce examination, they are
functioning not as individuals but as the Public Service
F Commission. Of course, we must make it clear that when
a close relative of a member of a Public Service
Commission is appearing for interview, such member must
withdraw from participation in the interview of that
candidate and must not·take part in any discussion in
G regard to the merits of that candidate and even the marks
or credits given to that candidate should not be disclosed
to him."
(emphasis supplied)
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1135
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.)
40. The real likelihood test was again applied in Ranjit A
Thakur v. Union-of India (1987) 4 SCC 611. In that case, the
appellant had challenged his dismissal from service on the
ground of violation of the provision contained in Section 130
of the Army Act, 1950. The facts of that case were that the
appellant, who was already serving sentence of 28 days B
rigorous imprisonment, is said to have committed another
offence for which he was subjected to summary court-martial
and was dismissed from service. Respondent No.4 who had
earlier punished the appellant was a member of the summary
court-martial in terms of Section 130 of the Army Act, 1950. c
The appellant was entitled to object the presence of respondent
No.4 in the summary court-martial, but this opportunity was not
given to him. The writ petition filed by the appellant was
summarily dismissed by the High Court. This Court held that
violation of the mandate of Section 130 militates against and
0
detracts from the concept of a fair trial. The Court then
proceeded to consider whether respondent No.4 would have
been biased against the appellant and observed:
"The test of real likelihood of bias is whether a reasonable
person, in possession of relevant information, would have E
thought that bias was likely and is whether respondent 4
was likely to be disposed to decide the matter only in a
particular way.
It is the essence of a judgment that it is made after due F
observance of the judicial process; that the court or tribunal
passing it observes, at least the minimal requirements of
natural justice; is composed of impartial persons acting
fairly and without bias and in good faith. A judgment which
is the result of bias or want of impartiality is a nullity and G
the trial "coram non-judice".
As to the tests of the likelihood of bias what is relevant is
the reasonableness of the apprehension in that regard in
the mind of the party. The proper approach for the. Judge
is not to look at his own mind and ask himself, however, H
1136 SUPREME COURT REPORTS [2011) 10 S.C.R.
A honestly, "Am I biased?"; but to look at the mind of the
party before him."
41. In Secretary to Government, Transport Department v.
Munuswamy Mudaliar 1988 (Supp.) SCC 651, this Court
8 considered the question whether a party to the arbitration
agreement could seek change of an agreed arbitrator on the
ground that being an employee of the State Government, the
arbitrator will not be able to decide the dispute without bias.
While reversing the judgment of the High Court which had
C confirmed the order of learned Judge, City Civil Court directing
appointment of another person as an arbitrator, this Court
observed:
"Reasonable apprehension of bias in the mind of a
reasonable man can be a ground for removal of the
D arbitrator. A predisposition to decide for or against one
party, without proper regard to the true merits of the dispute
is bias. There must be reasonable apprehension of that
predisposition. The reasonaiJle apprehension must be
based on cogent materials. See the observations of Mustill
E and Boyd, Commercial Arbitration 1982 Edn .. p. 214.
Halsbury's Laws of England, 4th Edn .. Vol. 2, para 551,
p. 282 describe that the test for bias is whether a
reasonable intelligent man, fully apprised of all the
circumstances, would feel a serious apprehension of
F bias."
(emphasis supplied)
42. In Bihar State Mineral Development Corporation v.
Encon Builders (I) (P) Ltd. (2003) 7 SCC 418, the Court
G applied the rule of bias in the context of a provision in the
agreement which empowered the Managing Director of the
appellant to terminate the agreement and also act as arbitrator.
This Court applied the rule that a person cannot be a judge of
his own cause and observed:
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1137
INQUIRY COMMITTEE & ORS. [G.S. SlNGHVI, J.]
"Actual bias would lead to an automatic disqualification A
where the decision-maker is shown to have an interest in
the outcome of the case; Actual bias denotes an arbitrator
who allows a decision to be influenced by partiality or
prejudice and thereby deprives the litigant of the
fundamental right to a fair trial by an impartial tribunal." B
43. The principles which emerge from the aforesaid
decisions are that no man can be a Judge in his own cause
and justice should not only be done, but manifestly be seen to
be done. Scales should not only be held even but it must not C
be seen to 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 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 D
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 person,
having considered all the facts would reasonably apprehend
that the Judge would not act impartially. To put it differently, the E
test would be whether a reasonably intelligent man fully apprised
of all the facts would have a serious apprehension of bias. In
cases of non-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 F
has to take into consideration human probabilities and ordinary
course of human conduct. We may add that 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 G
reasonable inquiries.
44. ln Halsbury's Laws of England [Vol. 29(2) 4th Edn.
Reissue 2002, para 560 page 379], the test of disqualification
due to apparent bias has been elucidated in the following
words:
H
1138 SUPREME COURT REPORTS [2011) 10 S.C.R.
A "560. Test of disqualification by apparent bias. The test
applicable in all cases of apparent bias, whether
concerned with justices, members of inferior tribunals,
jurors or with arbitrators, is whether, having regard to the
relevant circumstances, there is a real possibility of bias
B on the part of the relevant member of the tribunal in
question, in the sense that he might unfairly regard with
favour, or disfavour, the case of a party to the issue under
consideration by him. In considering this question all the
circumstances which have a bearing on the suggestion
c _that the judge or justice is biased must be considered. The
question is whether a fair minded and informed observer,
having considered the facts, would conclude that there was
a real possibility that the tribunal was biased. Cases may
occur where all the justices may be affected by an
appearance of bias, as, for instance, where a fellow justice
D
or the justices' clerk is charged with an offence; where this
occurs, it has been recommended that justices from
another petty-sessional division should deal with the case,
or, if the offence is indictable, that it should be committed
for trial by a jury.
E
It is because the court in the majority of cases does not
inquire whether actual bias exists that the maxim that
justice must not only be done but be seen to be done is
applied, and the court gives effect to the maxim by
F examining all the material available and concluding
whether there is a real possibility of bias ........ ."
45. In the light of the above, we shall now consider whether
the petitioner can invoke the rule of bias and seek invalidation
G of order dated 24.4.2011 and other proceedings held by the
Committee on the ground that respondent No.3 is biased and
prejudiced against him and as such he could not have been
made as a member of the Committee under Section 3(2) of
the Act. It is not in dispute that respondent No.3 participated in
H the seminar organised by the Bar Association of India of which
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1139
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
he was Vice-President. He demanded public inquiry into the A
charges levelled against the petitioner before his 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 8
opposing elevation of the 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 in the mind of an intelligent person that
respondent No.3 was likely to be biased. A reasonable, C
objective and 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 we have no doubt 0
that respondent No.3 possesses these qualities. We also
agree 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 No.3 has
not to be seen from the view point of this Court or for that matter E
the Committee. It has to be seen from the angle of a
reasonable, objective and informed person. What opinion he
would form! It is his apprehension which is of paramount
importance. From the facts narrated in the earlier part of the
judgment it can be said that petitioner's apprehension of F
likelihood of bias against respondent No.3 is reasonable and
not fanciful, though, in fact, he may not be biased.
46. The next question which merits consideration is
whether order passed by the Committee on 24.4.2011 should G
be quashed on the ground of reasonable likelihood of bias of
respondent No.3. While deciding this issue, we have 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 years, the petitioner has held constitutional posts of a
H
'•
1140 SUPREME COURT REPORTS [2011] 10 S.C.R
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 by eminent advocates
including two former Attorney Generals and in which respondent
8 No.3 made a speech opposing his elevation to this Court and
also drafted resolution for the said purpose. The proceedings
of the seminar received wide publicity in the print and electronic
media. Therefore. it can be said that much before constitution
of the Committee, the petitioner had become aware of the fact
C 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 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
D appointed respondent No.3 as member of the Committee
keeping in view his 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
15.1.2010 and was widely publicised by almost all newspapers.
E Therefore, it can reasonably be presumed that the petitioner
had become aware about the constitution of the Committee.
which included 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
F of the Committee through the print and electronic media. Thus,
at least on 12.5.2010 he was very much aware that 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
G latter's residence, the petitioner felt satisfied that the said
respondent had nothing against 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
H acceptance. It is also significant to note that respondent No.3
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1141
INQUIRY COMMITTEE & ORS. [GS. SINGHVI, J.]
had nothing personal against the petitioner He had taken part A
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 material gains was not B
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
reasonable prudence that he was ill-disposed against the c
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 entertain the petitioner's plea
that constitution of the Committee should be declared nullity on D
the ground that respondent No.3 is biased against him and
order dated 24.4.2011 be quashed.
47. The issue deserves to be considered from another
angle. Admittedly, the petitioner raised the plea of bias only
after receiving notice dated 16.3.2011 which was accompanied E
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 militates against the bona
fides of his objection to the appointment of respondent No.3
as member of the Committee. A person on the petitioner's F
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 otherwise
biased, then, he would have on the first available opportunity
objected to his appointment as member of the Committee. Tne G
petitioner could have done so immediately after publication of
notification dated 15.1.2010. He could have represented to the
Chairman that investigation 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. We H
1142 SUPREME COURT REPORTS [2011] 10 S.C.R.
A cannot predicate the result of the representation but such
representation would have given an opportunity 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
B wake of demand made by a section of the Bar which had
erroneously assumed 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 ill-disposed against him and this is the reason why he did
c not raise objection till April, 2011 against the inclusion of
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 the
Committee. The right available to the petitioner to object to the
appointment of respondent No.3 in the Committee was
0
personal to him and it was always open to him to waive the
same.
48. In Lachhu Mal v. Radhey Shyam, AIR 1971SC2213,
the Court considered the question whether the landlord can by
E way of agreement waive the exemption available to him under
U.P. (Temporary) Control of Rent and Eviction Act, 1947. In that
case, the landlord had entered into an agreement waiving the
exemption available to him under the Act. While dealing with
the issue of waiver, this Court held:
F
"The general principle is that every one has a right to
waive and to agree to. waive the advantage of a law or rule
made solely for the benefit and protection of the
individual in his private capacity which may be dispensed
with without infringing any public right or public policy.
G
Thus the maxim which sanctions the non-observance of
the statutory provision is cuilibet licet renuntiare juri pro
se introducto. (See Maxwell on Interpretation of Statutes,
Eleventh Edn., pp. 375 and 376). If there is any express
prohibition against contracting out of a statute in it then no
H
JUSTICE P. D. DINAKARAN v. HON'BLE JUDGES 1143
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
question can arise of any one entering into a contract which A
is so prohibited but where there is no such prohibition it
will have to be seen whether an Act is intended to have a
more extensive operation as a matter of public policy. In
Halsbury's Laws of England, Vol. 8, Third Edn., it is stated
in para 248 at p. 143: · B
"As a general rule, any person can enter, into a binding
contract to waive the benefits conferred upon him by an
Act of Parliament, or, as it is said, can contract himself out
of the Act, unless it can be shown that such an agreement
is in the circumstances of the particular case contrary to C
public policy. Statutory conditions may, however, be
imposed in such terms that they cannot be waived by
agreement, and, in certain circumstances, the legislature
has expressly provided that any such agreement shall be
void." D
(emphasis supplied) .
49. In Manak Lal v. Dr. Prem Chand Singhvi (supra), this
·Court held that the constitution of the Tribunal was vitiated due E
to bias because Chairman of the Tribunal had appeared
against the appellant in a case but declined to nullify the action
taken against him on the recommendations of the Tribunal on
the ground that he will be deemed to have waived the right to
raise objection of bias. Some of the observations made in that
case are extracted below: F
" ............... The alleged bias in a member of the Tribunal
does not render the proceedings invalid if it is shown that
the objection against the presence of the member in
question had not been taken by the party even though the G
party knew about the circumstances giving rise to the
allegations about the alleged bias and was aware of his
right to challenge the presence of the member in the
Tribunal. It is true that waiver cannot always and in every
case be inferred merely from the failure of the party to take H
1144 SUPREME COURT REPORTS [2011) 10 S.C.R
A the objection. Waiver can be inferred only if and after it is
shown that the party knew about the relevant facts and was
aware of his right to take the objection in question. As Sir
John Romilly, M.R., has observed in Vyvyan v. Vyvyan
"waiver or acquiescence, like election, presupposes that
B the person to be bound is fully cognizant of his rights, and,
that being so, he neglects to enforce them, or chooses one
benefit instead of another, either, but not both, of which he
might claim". If, in the present case, it appears that the
appellant knew all the facts about the alleged disability of
c Shri Chhangani and was also aware that he could
effectively request the learned Chief Justice to nominate
some other member instead of Shri Chhangani and yet did
not adopt that course, it may well be that he deliberately
took a chance to obtain a report in his favour from the
Tribunal and when he came to know that the report had
D
gone against him he thought better of his rights and raised
this poirit before the High Court for the first time. In other
words, though the point of law raised by Shri Daphtary
against the competence of the Tribunal be sound, it is still
necessary for us to consider whether the appellant was
E precluded from raising this point before the High Court by
waiver or acquiescence.
From the record it is clear that the appellant never raised
this point before the Tribunal and the manner in which this
F point was raised by him even before the High Court is
somewhat significant. The first ground of objection filed by
the appellant against the Tribunal's report was that Shri
Chhangani had pecuniary and personal interest in the
complainant Dr Prem Chand. The learned Judges of the
High Court have found that the allegations about the
G
pecuniary interest of Shri Chhangani in the present
proceedings are wholly unfounded and this finding has not
been challenged before us by Shri Daphtary. The learned
Judges of the High Court have also found that the objection
was raised by the appellant before them only to obtain an
H
JUSTICE P. 0. DINAKARAN v. HON'BLE JUDGES 1145
INQUIRY COMMITTEE & ORS. [G.S. SINGHVI, J.]
order for a fresh enquiry and thus gain time. It may be A
conceded in favour of Shri Daphtary that the judgment of
the High Court does not in terms find against the appellant
on the ground of waiver though that no doubt appears to
be the substance of their conclusion. We have, however,
heard Shri Daphtary's case on the question of waiver and B
we have no hesitation in reaching the conclusion that the
appellant waived his objection deliberately and cannot now
be allowed to raise it."
(emphasis supplied)
50. In Dhirendra Nath Gorai v. Sudhir Chandra AIR 1964 C
SC 1300, a three Judge Bench of this Court considered the
question whether the sale made without complying with Section
35 of the Code of the Bengal Money Lenders Act, 1940 was
nullity and whether the objection against the violation of that
section could be waived. After examining the relevant D
provisions, the Court held:
"A waiver is an intentional relinquishment of a known right,
but obviously an objection to jurisdiction cannot be waived,
for consent cannot give a court jurisdiction where there is
none. Even if there is inherent jurisdiction, certain E
provisions cannot be waived. Maxwell in his book "On the
Interpretation of Statutes", 11th Edn., a p. 357, describes
the rule thus:
"Another maxim which sanctions the non-observance of a
F
statutory provision is that cuilibet licet renuntiare juri pro
se introducto. Everyone has a right to waive and to agree
to waive the advantage ofa law or rule made solely for the
benefit and protection of the individual in his private
capacity, which may be dispensed with without infringing
any public right or public policy". G
The same rule is restated in "Craies on Statute Law", 6th
Edn., at p. 269, thus:
"As a general rule. the conditions imposed by statutes
which authorise legal proceedings are treated as being H
1146 SUPREME COURT REPORTS [2011] 10 S.C.R.
A indispensable to giving the court jurisdiction. But if it
appears that the statutory conditions were inserted by the
legislature simply for the security or benefit of the parties
to the action themselves, and that no public interests are
involved, such conditions will not be considered as
B indispensable, and either party may waive them without
affecting the jurisdiction of the court."
51. In conclusion, we hold that belated raising of objection
against inclusion of respondent No.3 in the Committee under
Section 3(2) appears to be a calculated move on the
C petitioner's part. He is an intelligent person and knows that in
terms of Rule 9(2)(c) of tfie 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 the charges framed under Section 3(3) of the Act were
o 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 Court can render assistance
E to the petitioner in a petition filed with the sole object of
delaying finalisation of the inquiry.
52. However, keeping in view our finding on the issue of
bias, we would request the Chairman to nominate another
distinguished jurist in place of respondent No.3. The
F 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
G shall be entitled to proceed on the charges already framed
against the petitioner.
53. In the result, the writ petition is dismissed with the
aforesaid observations.
8.8.B. Writ Petition dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "bias"Sign in to search