What Can and Cannot Happen in Justice Yashwant Varma's Case

In the bedlam over the removal of Justice Yashwant Varma for the burnt cash scandal through the impeachment process, several certainties have erupted. But not all are equally tenable in the eyes of the constitution.

The Supreme Court three-judge panel that was set up in March, by then Chief Justice Sanjeev Khanna, for conducting an inquiry into the allegations of corruption as large bundles of cash were found burning in the outhouse of Varma’s residence, gave its report to the government in May, holding the judge responsible for “misconduct.”

As the report stated, “The half-burnt currency notes seen and found during the process of dousing the fire are … not of small amount or denomination which could not have been placed in the store room without the tacit or active consent of Justice Varma or his family members.” The CJI recommended Varma’s resignation. Varma, by then, was transferred back to the Allahabad high court, and refused. The stage was set for his removal by impeachment.

However, senior legal counsels like Kapil Sibal raised objections saying there must be an investigation because there are no established facts other than videos showing the burnt cash. They have asked why the Delhi Police did not seize the half-burnt cash, why the police did not note down the serial number of even one currency note to establish the source, and why no first information report was registered. Where is the forensic evidence to establish criminality, Sibal has asked.

The inquiry committee said that while the police were perhaps “slipshod” in their duty, the committee’s guidelines was “not to find fault with the action or inaction with the police and fire personnel…the nature of the inquiry was to be fact finding without being formal judicial enquiry involving examination and cross examination of witnesses (55 witnesses including the judge and his daughter) or representation by lawyers.”

Opposition parties have been circumspect and have not declared their opinion on the impeachment of Justice Varma which is on the cards in the Monsoon Session of Parliament scheduled for July 21. While parties like the Trinamool Congress did not want to comment, the Communist Party of India (Marxist) has said it is in favour of the impeachment. The Congress has said it would be better for Justice Varma to resign before the motion of impeachment is passed in parliament.

So, has Justice Varma already been declared guilty as the SC panel has said the “half burnt notes are suspicious,” and it underlined “implied responsibility” and “misconduct”?

Do the panel’s findings hold in case of an impeachment? The media has represented the findings as if it is the final proof of Justice Varma’s guilt, but is it indeed so, legally? And, how serious is the government about pushing for an impeachment?

Also read: Full Text | Three-Judge Panel's Report in Justice Yashwant Varma Cash Case

Parliament's powers

Senior counsel Indira Jaising, who played a key role in the impeachment proceedings against Justice V. Ramaswami for financial misconduct in 1993, says, “Impeachment is a process of removal, not a criminal prosecution, as a criminal prosecution can only be done by a criminal court of competent jurisdiction like the magistrate’s court or sessions court. The parliament has no power to criminally prosecute. However, parliament has the power to remove a judge from office; and if the impeachment is successful the judge is removed from his office but he does not stand criminally convicted.”

While Justice Varma continues to say he is innocent and there is a conspiracy to malign him, the SC panel’s findings and conclusions are immaterial in an impeachment case, says Jaising.

“Under the Judges (Inquiry) Act, 1968, only MPs are authorised to sign a motion to remove a judge – a total of 100 MPs in the Lok Sabha, or 50 MPs from the Rajya Sabha," she added.

The government, says Jaising, has no role in the process, even though it is falsely creating the impression that it is authorised or has the jurisdiction to initiate the removal of a judge. Once the motion is signed and submitted to the presiding official, be it the Speaker or Chairperson, and accepted, the matter goes to the Chief Justice of India to constitute a three-member committee, says Jaising.

This consists of a sitting judge of the Supreme Court, a sitting judge of a high court and one jurist; and the proceedings take place in Parliament annexe. The judge gets a full opportunity to present his case; while the committee has the power to ask for forensic evidence, take evidence on oath and allows the judges to cross examine whoever is being put in the witness box. If in conclusion there is proof of misconduct, the report is sent to Parliament and both houses have to vote on the impeachment.

Jaising says in the Ramaswami case, while the judge was found guilty of misconduct after MPs moved a motion for his impeachment and investigations were conducted by the parliamentary-appointed panel, the Congress party eventually abstained from voting for the motion in the Lok Sabha for his removal, and Ramaswami escaped expulsion.

'Covert control'

Congress MP and senior legal counsel, Abhishek Manu Singhvi, underlines the fact that while the SC investigation panel is the prescribed norm to look into cases of judges’ misconduct, its findings can in no way substitute the legal processes.

“The in-house investigation is not statutory though it is a must going by the practice of the Supreme Court,” Singhvi says.

He also asks opposition parties to ensure the delicate balance between judicial independence and accountability, and warns of a covert control of the judiciary by the government all in the name of reform. He says, “If parliament decides to act one must be wary of all subtexts and all ulterior agendas – like controlling the judiciary, bringing in the NJAC (which allows the government in the appointment of judges), creating new structures for direct FIRs against sitting judges (at present the chief justice has to give sanction for an FIR against a judge).” The NJAC Act was passed in parliament in August, 2014, within months of Modi taking over as prime minister, where it replaced the in-house collegium with a six-member commission including from the government, for the appointment of judges. It was struck down by the Supreme Court 14 months later.

In fact, according to some reports, the Modi government is trying to wave off the parliament-notified three-judge committee that is mandatory once the motion for impeachment is accepted by the Speaker or Chairperson. The Modi government is, according to the reports, looking at ways to say that the committee is unnecessary as the SC panel has already submitted its report.

“The SC panel’s report is not a conclusive finding,” says Singhvi, adding that it is only a tentative prima facie view of an in-house committee. It is why a statutory committee of judges must now to be appointed as the first next step in the impeachment process. The former is not a substitute to the latter. “

Jaising too says the government’s reported move to rely solely on the in-house SC panel report as it has already been submitted, and to shrug at the mandatory three-judge panel to be set up after the impeachment process begins, will be an incorrect one if it happens. “It not only undermines Justice Varma’s right to a fair procedure but also the Judges (Inquiry) Act, 1968, a legislation that derives its strength from the Constitution. The government cannot conflate an in-house committee with a Constitution mandated committee, the two inquiries differ in their mandate, power and purpose," she says.

So what can the government do?

So, how serious is the government to start the process of impeachment in parliament if it is already putting hurdles on the way?  Serious questions are being raised by opposition MPs on the government’s refusal to move on the long-pending notice signed by 55 MPs in the Rajya Sabha and which was handed over to Chairperson Jagdeep Dhankhar, for the removal of Allahabad high court judge Shekhar Yadav, for his anti-Muslim hate speech at a Vishwa Hindu Parishad event where he was a guest speaker.

Says CPI(M) MP in the Rajya Sabha, John Brittas, “We are in principle open to support the motion on the impeachment of Justice Varma, but it shouldn’t be selective…why is Dhankhar dragging his foot on the pending impeachment notice on Judge Yadav’s hate speech? I read an interview of Union home minister Amit Shah where he says they are different issues – one is corruption, the other is conduct. Misconduct of a judge is a corrupt practice too.”

Singhvi says it is better for Justice Varma to resign. “Parliament will be spared the arduous process of debate, vote, political crossfire, and above all, institutional insult, if the judge steps down, given the overwhelming odds stacked against him. However, if the judge stays or resigns, in the end parliament must safeguard the sanctity of the bench," he adds.

Jaising believes those parties which believe the judge must resign before the impeachment process begins are “dodging the issue” of corruption. “They are fobbing the issue as it’s an easy way out. However, so far as Judge Varma is concerned, would any litigant want his case to be heard by him today?” she asks.

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