Saurav Das 
When a sitting high court judge uses communal slurs and advocates majoritarian dominance at a public event, it is not just an affront to judicial ethics – it is a direct assault on the constitution. Allahabad high court judge Justice Shekhar Kumar Yadav’s December 8 remarks at a Vishwa Hindu Parishad event, where he used the communal slur “kathmulla” to describe minorities and proclaimed that they must adhere to the “wishes” of the majority, mark a dangerous turning point.
For India’s minorities, such statements from a sitting judge aren’t just words – they are threats that erode faith in the judiciary’s ability to safeguard constitutional rights.
So egregious were Justice Yadav’s remarks that they provoked rare action from opposition MPs in parliament, with Ruhullah Mehdi in the Lok Sabha and Kapil Sibal in the Rajya Sabha submitting impeachment notices. While this is doomed to fail due to a lack of parliamentary numbers – that is, if the motion is even admitted by the Speaker or Chairman in the first place – their symbolic importance cannot be overstated. They represent solidarity with India’s minorities and serve as a warning to judges against crossing the line of judicial discipline. The only meaningful recourse against Justice Yadav now lies within the judiciary itself.
However, seven weeks later, the Supreme Court’s response has been meek, informal, and opaque. Complaints against Justice Yadav were lodged with President Droupadi Murmu and Chief Justice of India (CJI) Sanjiv Khanna just two days after his speech. Civil society groups like the Prashant Bhushan-led Campaign for Judicial Accountability and Reforms (CJAR) urged the CJI to initiate an “in-house inquiry” to send a “strong institutional response.”
Thirteen senior advocates have since written to the CJI and collegium judges, requesting the CJI to direct the Central Bureau of Investigation (CBI) to lodge an FIR against Justice Yadav under section 196 (promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony) and 302 (uttering words, etc., with deliberate intent to wound religious feelings of any person) of the Bharatiya Nyay Sanhita. While this letter reflects the genuine anger his remarks provoked, demanding a criminal investigation by a premier agency for what is essentially the judge’s thoughts and mindset may be a stretch. Justice Yadav’s speech, distasteful and harmful as it is, violates judicial ethics and discipline but does not necessarily warrant a criminal probe.
Anyhow, this leaves only the judiciary’s internal mechanisms, particularly the In-House Procedure, as the appropriate avenue for redress. The judiciary’s In-House Procedure outlines how complaints of judicial misconduct are to be addressed. It requires the CJI to first assess whether a complaint is frivolous or substantial. In the case of the latter, the CJI must seek a report from the Chief Justice of the high court concerned and comments from the accused judge. Based on this report, if the CJI feels it is warranted, a three-judge fact-finding committee must be constituted. If the committee’s findings warrant impeachment, the judge could be advised to resign, take voluntary retirement, or face a withdrawal of work pending impeachment. Lesser transgressions lead to advisories on better conduct.
What did the Supreme Court do?
It is unclear if the Supreme Court has initiated this in-house procedure in Justice Yadav’s case. Whatever little we know is based on sources telling newspapers what they think they should know. Two days after Justice Yadav’s speech, on December 10, the Supreme Court issued a vague statement noting it had “taken note of newspaper reports” on Justice Yadav’s remarks and had sought “details and particulars” from the Allahabad high court. A week later, the Collegium summoned Justice Yadav and reportedly advised him to refrain from making such statements and apologise publicly. Earlier this month, CJI Khanna again sought a fresh report from the Chief Justice of Allahabad high court, referring to complaints against his speech filed by a law student and a retired IPS officer. Recent reports indicate that Justice Yadav has refused to apologise in his reply to the complaints, and insisted that his speech was a reflection of societal issues consistent with constitutional values, distorted by those with “vested interests.”
One can only assume that the “fresh report” has been sought in keeping with the in-house procedure since the Supreme Court has not issued any official statement so far. The more important bit is however, the manner in which this entire saga was handled by CJI Khanna.
Ideally, the in-house procedure ought to have been triggered the moment a written complaint was filed against Justice Yadav. Instead, CJI Khanna thought it fit for the collegium to address the controversy. What procedural justification would the CJI have for opting this route instead of the established in-house procedure? The procedure does not contemplate the collegium’s intervention in such cases. Its jurisdiction is limited to appointments and transfers. By summoning Justice Yadav informally before the collegium, CJI Khanna bypassed established procedures. This ad-hoc approach undermines both transparency and accountability. Can the judiciary be allowed to continue to do as it finds convenient?
Now imagine, had Justice Yadav acquiesced to the Collegium’s advice to tender a public apology, would that be the end of the matter? The CJI would still be bound to formally handle the written complaints.
Public trust
This procedural looseness and lack of transparency is emblematic of the judiciary’s larger accountability deficit. In March 2022, the government disclosed that over 1,600 complaints about judicial misconduct had been forwarded to the CJI and high courts between 2017 and 2021. What became of these complaints remains unknown.
An RTI request I filed with the Supreme Court registry seeking this information was rejected on the pretext that the data was not maintained in the “manner sought” – a legally untenable excuse under the RTI Act, which mandates providing information in alternative formats if necessary.
A simple question arises – had the CJI asked for this very same information from his registry, would they have replied in the same way? One can reasonably suspect that the truth about these 1600+ complaints would be deeply embarrassing for the institution. This opacity is deeply problematic for it erodes public confidence in an institution that demands procedural fairness and transparency from other branches of government but exempts itself in every possible way.
Justice Yadav’s case highlights the urgent need for judicial reform. The in-house procedure is informal. The only formal recourse for judicial misconduct is impeachment – a process so politically fraught that it is rarely pursued. Retired judges privately admit that the court lacks effective mechanisms to handle the large number of complaints it receives against its own. So why does it hesitate from publicly acknowledging this? Its admission could pave the way for much-needed reforms – unless the intention is to maintain a convenient status-quo.
CJI Khanna, and his successor, Justice B.R. Gavai, have an opportunity to address this institutional inertia. Admitting to institutional weaknesses is not a failure – it is the first step toward rebuilding public trust. While one cannot trust the present government to bring in a law that genuinely works for the institution’s benefit and not tilt the mechanism in the executive’s favour, the judiciary can, for now, start with simply inducing transparency in handling complaints and making the findings of its investigations publicly accessible – starting with the high court Chief Justice’s reports to the CJI.
As far as Justice Yadav’s case is concerned, it was recently reported that barely a month after his controversial speech, Justice Yadav was set to attend another seminar on the politically charged Ram Mandir movement as a keynote speaker. While Justice Yadav later told Bar & Bench that these reports were “false,” other outlets suggested he had initially accepted the invitation but later “withdrew” citing “work obligations.” The very fact that Justice Yadav initially agreed to participate underscores how little the scathing public criticism and the collegium’s private reprimand have influenced his conduct. If CJI Khanna fails to act decisively and transparently in Justice Yadav’s case, he risks allowing communal prejudice to seep further into judicial ranks, undermining the very constitution we celebrated this month.
Saurav Das is an investigative journalist writing on law, judiciary, and policy.