(Per Honourable Sri Justice P.V.Sanjay Kumar)

Recent events involving the higher judiciary highlighted by the Press and the Media seem to have spurred the petitioner, a member of the legal fraternity, professed social worker and a self-proclaimed sentinel of judicial independence, to file the present writ petition. His prayer in the writ petition is in the following terms:

“… … this Hon’ble Court may be pleased to issue an appropriate writ, order or direction more particularly, one in the nature of Writ of Mandamus declaring that no authority be it constitutional or statutory has any power to order enquiry or investigation and call for a report against any Judge of any High Court or Supreme Court of India and that no investigating agency or police or other authorities shall have any power to investigate, enquire and submit any report against any sitting Judge of the High Court or the Supreme Court of India except as provided by the Constitution of India, i.e., by way of impeachment only, as it would be violative of Articles 124(4) and 218 of the Constitution of India and also violative of the Basic Structure of the Constitution and Doctrine of Separation of Powers apart from being contrary to Section 3 of the Judges (Inquiry) Act, 1968, after declaring Section 3(2) of Judges (Protection) Act, 1985 as unconstitutional as it is violative of the Articles 124(4) and 218 of the Constitution of India and also violative of the Basic Structure of the Constitution and Doctrine of Separation of Powers apart from contrary to Section 3 of the Judges (Inquiry) Act, 1968 or pass such other order or orders as are deemed fit and proper in the circumstances of the case.”

The permission granted by the Honourable The Chief Justice of India to the Central Bureau of Investigation to examine two Judges of the Punjab and Haryana High Court gave impetus to this writ petition. This permission is characterized by the petitioner as an administrative order open to challenge as it impinges upon the independence of the Judiciary. It is his contention that this permission upsets the balance of powers amongst the three branches of constitutional government and provokes examination of the basic structure of our constitutional dispensation, thereby enabling this Court to exercise it’s power of judicial review under Article 226 of the Constitution of India.

Conscious of the fact that he is treading on shaky ground, the petitioner tries to explain at great length in his affidavit as to why the writ petition is maintainable before this Court.

The petitioner likens this administrative action on the part of the Honourable The Chief Justice of India to a ‘Damocles Sword’ hanging over the head of every High Court Judge and alleges that under such a threat, no High Court Judge would be able to function independently, without fear and apprehension of being subjected to investigation. Such action, according to the petitioner, would be violative of Articles 124(4) and 218 of the Constitution of India and would also be contrary to Section 3 of the Judges (Inquiry) Act, 1968 (for short, ‘the Act of 1968’).

The petitioner also challenges the constitutional validity of Section 3(2) of the Judges (Protection) Act, 1985 (for short, ‘the Act of 1985’). Section 3 of the Act of 1985 reads as follows:

“3. Additional protection to Judges.-

(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-sec.(2), no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function.

(2) Nothing in sub-sec. (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being i