By Dilip Bobb
The petition filed by Justice Yashwant Varma, under XXX vs Union of India, to hide his identity, for quashing the in-house proceedings against him over allegations of “wads of cash” found at his official bungalow, comes after the required number of MPs signed the impeachment order. That process will happen in the current monsoon session, but it has already acquired a political tint, unlike the previous cases of judges being impeached.
THE VICE-PRESIDENT’S PREMATURE MOVE?
One of the prime factors in the speculation swirling around the mysterious resignation of Vice-President Jagdeep Dhankhar is that he jumped the proverbial gun by giving notice of a motion to impeach Justice Varma in the Rajya Sabha, while the centre’s plan was to have it introduced in the Lok Sabha first. Whether true or not, it has added another layer of controversy over the scandal involving Justice Varma who has, through his lawyer, Kapil Sibal, sought to discredit the in-house inquiry into his alleged corruption.
The XXX signature on a petition is usually reserved in petitions where identities of rape victims are sought to be concealed or to avoid revealing names of juveniles, or minors in matrimonial custody cases.
Sibal told the Supreme Court bench comprising Justices Dipankar Datta and AG Masih, that the in-house inquiry by a committee that was submitted to the government, was unconstitutional and “the whole procedure has become political”. “I (Justice Varma) have already been convicted,” referring to the video and photographs of the half-burnt currency notes that were found at an outhouse of Justice Varma’s official residence. Sibal also questioned how then Chief Justice of India (CJI) Sanjiv Khanna could have recommended Justice Varma’s removal to the president and prime minister, saying “he had no such power”.
The bench countered Sibal’s plea on behalf of Justice Varma, by asking why the petition was submitted after the inquiry had already ended and the report submitted to the government. “Why did you not challenge when the committee was appointed? Why did you wait?” In response to Sibal’s other objection, Justice Datta said that impeachment was also a political procedure. Datta added that such matters have to be placed before the president who is the appointing authority for judges of constitutional courts. There was also nothing objectionable in forwarding it to the prime minister either.
THE IN-HOUSE PROCEDURE: PRECEDENT OR OVERREACH?
Justice Varma’s argument that the in-house procedure lacks constitutional or statutory sanction is clearly misplaced. The procedure originates from the Supreme Court’s decision in C Ravichandran Iyer vs Justice AM Bhattacharjee (1995), which recognised the need for an in-house mechanism to address complaints against High Court judges. The Court held that the chief justice of a High Court, after verification and confidential inquiry, should consult the CJI to address allegations of misconduct. This fills the gap between “proved misbehaviour” under the Constitution and conduct inconsistent with judicial office, thereby enabling self-regulation within the judiciary.
The late former Attorney General and celebrated jurist Soli Sorabjee strongly defended the in-house procedure adopted by the Court, arguing that it stems from established precedent. For him, the main aim of such inquiries was to preserve the independence of the judiciary.
There is also fairly recent precedence. When former CJI Ranjan Gogoi was accused of sexual harassment by a staff member, a similar in-house mechanism, consisting of three judges, was established, and a report was submitted. On April 19, 2019, a former junior Court Officer alleged that she was sexually harassed and subsequently victimized by the CJI. The next day, the CJI called a special hearing in which he denied the allegations. Justice Gogoi formed an in-house panel to investigate the allegations against him. The in-house panel initially comprised his successor, SA Bobde, NV Ramana and Indira Banerjee. Justice Ramana recused himself due to his close personal relationship with CJI Gogoi and was replaced by Justice Indu Malhotra. On May 6, the panel concluded that there was no substance in the allegations, despite the complainant withdrawing from the inquiry alleging procedural impropriety. Further, it declined to make the report available to the public, citing Indira Jaising vs Supreme Court of India. Such examples are proof that the in-house procedure, which Sibal argued was invalid, have been used in the past and also carry judicial sanction.
There was another case involving allegations of sexual harassment where the same process: a three-member committee established under the Judges (Inquiry) Act, 1968, was followed. That too, was aborted before the committee could complete its inquiry.
Incidentally, Justice Varma submitted himself to the jurisdiction of the in-house committee. He participated in the proceedings and made submissions before the committee. To now question the very existence of the procedure or its legality, smacks of legal deception. Sibal is a formidable presence in the Supreme Court, and the objections he has raised, and the response by the bench, will continue even as the motion of impeachment, according to Parliamentary Affairs Minister Kiren Rijiju, will be taken up shortly in the Lok Sabha.
A JUDGE DETERMINED NOT TO RESIGN
Justice Varma is clearly determined to prolong his battle over his impeachment, and see it to the bitter end, despite the examples of other judges who faced similar charges and resigned before the impeachment process reached an end.
Justice Soumitra Sen, former judge of the Calcutta High Court, avoided impeachment by resigning on September 1, 2011, five days before a motion for his impeachment was to be taken up by the Lok Sabha. The Rajya Sabha had already voted in favour of the impeachment motion due to his misappropriation of funds while acting as a receiver in a case. He was accused of misappropriating funds that he received in his capacity as a receiver appointed by the Calcutta High Court. He was also accused of misrepresenting facts about the misappropriation to the Court. A committee, consisting of Supreme Court Justice B Sudarshan Reddy (Chairman), Justice TS Thakur, and noted jurist and former Attorney General Fali S Nariman, was formed to investigate the allegations. The committee concluded that Justice Sen was guilty of misappropriating funds.
Earlier, 58 MPs of the Rajya Sabha had moved a motion for impeachment of Justice Sen for his involvement in financial misappropriation. The report of the three-member committee, placed in both Houses of Parliament, said it was of the opinion that Justice Sen was “guilty of misbehaviour” under Article 124 of the Constitution of India which states that a judge of a High Court shall not be removed from his office except on the grounds of “proved misbehaviour”. The prefix “proved” only means proved to the satisfaction of a requisite majority of Parliament, if recommended by the inquiry committee. The report said the oral and documentary evidence had established that two separate accounts were opened by Justice Sen as “receiver” in his own name and a sum of Rs 33,22,800 being the sale proceeds of goods were added to the two accounts between March 24, 1993 and May 5, 1995. The indictment of Sen paved the way for Parliament to take up the impeachment.
Like Sibal in Justice Varma’s case, Subash Bhattacharya, the lawyer of Justice Soumitra Sen, said that his client would prove his innocence. Sen was given an opportunity to defend himself through his counsel. On August 18, 2011, the Rajya Sabha initiated impeachment proceedings against Justice Sen, and the motion was passed in the Upper House. The Lok Sabha was then set to consider the motion. Facing almost certain removal by the Lok Sabha, Justice Sen resigned before the impeachment proceedings could be completed in the lower House. His was the first instance where the Rajya Sabha voted in favour of impeaching a High Court judge. It was also the second time in India’s parliamentary history that an impeachment motion was moved against a judge. If the Lok Sabha had proceeded with the vote, Justice Sen would have been the first judge to be impeached by the lower house.
The first was actually Justice V Ramaswami. He served as a judge in the Madras High Court for 16 years before being appointed as chief justice of the Punjab and Haryana High Court in 1987 and less than two years later, was elevated to the Supreme Court. The Punjab government’s attorney general found that there were serious irregularities in administrative expenses incurred when Justice Ramaswami was the chief justice and that proper procedures were not followed and raised audit objections.
A three-member committee headed by Supreme Court judge Justice PB Sawant was formed. Their inquiry report stated that there was proof of the charges against Justice Ramaswami. The process then moved to Parliament where an impeachment motion was taken up for discussion. Justice Ramaswami declared that he was not going to continue in his post whatever the outcome of the vote. His term of office was to end on February 14, 1994, which meant that he still had nearly nine months left in office. He was given no official work and retired prematurely, becoming the first judge in Indian judicial history to face impeachment.
The other case that reached Parliament involved Justice PD Dinakaran. In September 2009, allegations were made against Dinakaran by several members of the Bar Council of India including the late Union Law Minister Ram Jethmalani, stating that he had amassed huge assets and land acquisitions in his hometown. The lawyers wrote a letter to then President Pratibha Patil, Prime Minister Manmohan Singh and Union law minister to intervene in this matter. The then chairman of the Rajya Sabha admitted a motion seeking his removal on charges of corruption. Justice Dinakaran stopped performing any judicial functions once the motion was admitted.
The Supreme Court collegium recommended his transfer to the Sikkim High Court. The law ministry returned the file to the collegium for fresh consideration. Facing impeachment on charges of corruption and judicial misconduct, Justice Dinakaran resigned on July 29, 2011, hinting that the fact he was a Dalit had something to do with the probe. However, his pre-emptive resignation did manage to scuttle the inquiry against him. Then chairman of the Rajya Sabha, Hamid Ansari, gave the inquiry committee report a quiet burial, citing Dinakaran’s resignation.
PARLIAMENT PREPARES TO PASS JUDGMENT
Justice Varma’s decision to be represented by a senior advocate of the stature of Sibal, whose fees are astronomical, suggests he is determined to not go down without a fight, no matter what the costs, literally and figuratively. All the previous judges quit before their tenure was to end or before Parliament passed an impeachment order. His impeachment motion will probably come up after key issues like Operation Sindoor, US President Donald Trump’s repeated claims of brokering a ceasefire, the SIR controversy by the Election Commission in Bihar and the impact of Trump’s tariff war are discussed.
On opening day of the Monsoon Session, 145 MPs in the Lok Sabha and 63 in the Rajya Sabha submitted a petition seeking his impeachment, citing allegations of corruption. The petition, filed under Articles 124, 217, and 218 of the Constitution, included signatures from leaders across parties such as Anurag Thakur, Ravi Shankar Prasad, Rahul Gandhi, Rajiv Pratap Rudy, PP Chaudhary, Supriya Sule, and KC Venugopal. Union minister Rijiju has confirmed that the Lok Sabha would initiate proceedings to remove Justice Varma, stating: “We shouldn’t remain in any doubt, proceedings to remove Justice Yashwant Varma will begin in Lok Sabha,” and noted that all parties supported the move. Justice Varma had earlier been relieved of his duties and repatriated to the Allahabad High Court in April where he is hearing no cases, while fighting his own.
—The writer is former Senior Managing Editor, India Legal magazine