Can there be an FIR against Justice Yashwant Varma? A 1991 SC verdict holds the answer

In Justice Yashwant Varma’s case, Delhi police commissioner shared photographs and video of cash, allegedly found in aftermath of a fire, with the Delhi high court chief justice.

File photo of high court judge Justice Yashwant Varma | ANI

New Delhi: Can there be an FIR and a criminal case against high court judge Justice Yashwant Varma over allegations that wads of unaccounted cash were found at his official residence earlier this month? A 1991 judgment passed by the Supreme Court says yes, but with caveats.

The court ruled that a judge of a superior court will not be immune from prosecution for criminal offences committed during the tenure of office under provisions of the Prevention of Corruption Act.

However, it added that no criminal case shall be registered under Section 154 of the Criminal Procedure Code (an FIR) against a judge unless the government “consults” the Chief Justice of India. “If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered,” the judgment says.

Further, similar consultation has to be conducted at the stage of grant of sanction for prosecution. It said that while the President needs to give such a sanction for prosecution, she must do so only on the advice of the CJI.

In Justice Varma’s case, the Delhi police commissioner had shared photographs and video of the cash allegedly found in the store room of his official residence with Chief Justice of the Delhi high court on WhatsApp. But an FIR can be registered against him only when the government consults with the CJI on the issue. None of the documents published by the Supreme Court so far indicate whether such a consultation was sought for filing a criminal case against Justice Varma.

In this 1991 case, a complaint was made to the CBI against K. Veeraswami, a former chief justice of a high court, following which a case was registered against him under provisions of the Prevention of Corruption Act 1947, a month and a half before his retirement in 1976.

A chargesheet was also filed against him in 1977 before a special judge, alleging disproportionate assets. 

In his petition before the Supreme Court, Veeraswami submitted that the provisions of the 1947 law do not apply to a judge of a superior court. He argued that for such prosecution, the previous sanction of an authority competent to remove a public servant is required, and the power to remove a judge is not vested in any single authority, but in the two Houses of Parliament.

However, the top court ruled that the President of India is the competent authority to give previous sanction for prosecution of a judge of a superior court. This sanction, it said, was to protect the judge from unnecessary harassment, frivolous prosecution, and to save the judge from “biased prosecution” for giving judgment in a case which goes against the government or its officers though based on good reason.

The court further ruled that no criminal case shall be registered against a judge or chief justice of a high court, or a Supreme Court judge, “unless the Chief Justice of India is consulted in the matter”.

“Due regard must be given by the Government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered,” the majority judgment delivered by a 5-judge bench had said, making the CJI’s opinion binding.

The judgment also looked into whether criminal proceedings against a judge can be initiated before Parliament takes a call on a high court judge’s removal under Article 124 of the Constitution, which says that a judge may be removed only through a motion in Parliament with two-thirds support in each House. It said that just like criminal proceedings can be initiated against a public servant before exhausting the disciplinary proceedings against him, a judge can be prosecuted for criminal misconduct before his removal by Parliament.

At the time the judgment was passed in July 1991, the in-house procedure to deal with allegations against judges was not in place, and so it did not touch upon this procedure which has now been initiated against Justice Varma. This in-house inquiry adopted in 1999 allows the setting up of an inquiry committee to examine the allegations against a judge.

‘A judge is a public servant’

Justice B.C. Ray’s opinion in the 1991 judgment explained that a judge of the high court or the Supreme Court comes within the definition of “public servant” under the provisions of the Prevention of Corruption Act 1947, and is liable to be prosecuted under this law.

“A judge will be liable for committing criminal misconduct…if he has in his possession pecuniary resources or property disproportionate to his known sources of income for which he cannot satisfactorily account,” he added.

In order to adequately protect a judge from frivolous prosecution and unnecessary harassment, the President is required to consult the Chief Justice of India, who will then consider all the material placed before him and tender his advice to the President for giving sanction to launch prosecution.

“The President shall act in accordance with the advice given by the Chief Justice of India,” Justice Ray observed.

In fact, he asserted that if the CJI opines that it is not a fit case for grant of sanction for prosecution of the judge, the President “shall not accord sanction”—effectively make the CJI’s advice binding.

He highlighted the need for such a method commensurate with the grant of sanction in cases of serious allegations of corruption and possession of disproportionate assets, observing, “Otherwise, it will create a serious inroad on the dignity, respect and credibility and integrity of the high office which a superior judge occupies resulting in the erosion of the dignity and respect for the high office of the judges in the estimation of the public.”

The concurring opinion by Justices K.J. Shetty and M.N. Venkatachaliah also asserted that judges are liable to be dealt with the same way as any other person when it comes to criminal offences.

(Edited by Amrtansh Arora)