New Delhi: Allahabad High Court judge Justice Yashwant Varma, at the center of the cash-judge row, faced some tough questions Monday from the Supreme Court with regard to his argument that he was already convicted in public for an offence he was not guilty of and that the three-judges enquiry panel’s report cannot be the foundation to initiate statutory impeachment proceedings in Parliament.
A bench of justices Dipankar Dutta and Augustine Masih questioned Justice Varma for challenging the enquiry proceedings, despite appearing before it. It wondered why he waited until now to assail the procedure that was adopted following the discovery of half-burnt Indian currency notes from an outhouse of his residential premises when he was a judge of the Delhi High Court.
“Did you take a chance of a favourable finding? You are a constitutional authority. You cannot say I don’t know,” the judges told senior advocate Kapil Sibal, who on behalf of Varma contended that the sitting judge had been severely condemned and declared guilty even before the start of the statutory proceedings under which only Parliament has the jurisdiction to remove a judge in office.
Sibal was arguing Varma’s writ petition in which the judge has argued that former Chief Justice of India (CJI) Sanjiv Khanna’s recommendation, based on the three-judges enquiry report, cannot be the basis to remove him. Justice Varma has contended that a sitting judge’s conduct cannot be part of a public discourse before the legislative process commences, a constitutional mandate that was defied in his case.
CJI Khanna had set up the three-member panel following the allegations of the cash discovery at Justice Varma’s official residence. The fact-finding committee was constituted on the terms of the in-house inquiry procedure that is a judicially evolved mechanism to look into alleged misconduct or misbehavior of sitting judges of the higher judiciary. This process is distinct from the statutory procedure prescribed under the Judges Enquiry Act to remove a sitting HC or SC judge.
The purpose of a in-house enquiry is to assist the CJI in case he/she wants to take action on a complaint received against a judge of the HC or top court.
After a thorough probe and examination of witnesses, the three-member panel in Justice Varma’s case termed his conduct as unnatural and gave adverse inferences against him. This led CJI Khanna to advise Justice Varma to resign, which the latter refused to do. Consequently, CJI Khanna had forwarded the report to the President and Prime Minister for further action.
“The entire case has become political,” Sibal submitted, prompting the bench to say: “Impeachment is also a political procedure.” It then asked Sibal why the HC judge appeared before the committee. “You should have immediately come to this court and obtained a stay (against the constitution of the committee). You should have raised (the questions) before submitting yourself to the committee’s jurisdiction,” the bench observed.
During the hearing, the bench also sought to understand from Sibal why he felt that former CJI Khanna’s action to forward the report to the President and Prime Minister was not a constitutionally valid move. Sibal’s contention was that the CJI, under the in-house procedure, was not authorised to recommend a judge’s removal.
“The President is the appointing authority and, therefore, the matter was placed before it (President’s office). Since the President acts as per the aid and advice of the Council of Ministers and the Prime Minister is the leader of the council of ministers, therefore, forwarding to the Prime Minister is also not problematic,” Justice Dutta reasoned.
According to the judge, the former CJI’s approach in the matter did not imply that he was “trying to persuade the House (Parliament) to act on the basis of his recommendation.”
The bench was not convinced of Sibal’s suggestion that the probe was “bad”. It said: “The procedure, which contemplates a preliminary can’t be bad.” It also reminded the senior advocate that the in-house enquiry was a consequence of a constitution bench judgment of the Supreme Court. The court made the reference to indicate that Sibal would have to challenge the constitution bench decision if he had issues with the in-house procedure.
Sibal, however, clarified that Justice Varma has not moved against the judgment and, that, the judge was aggrieved with the manner in which the entire the probe ensued, which was contrary to the Constitution.
He pointed out that all the steps taken—from the release of tapes to public discussions to accusations against the judge—are all prohibited. In this backdrop, Sibal asserted, the report cannot be the basis of impeachment and offered to present CJI Khanna’s letter when he was asked why he held such an apprehension. “How do we know,” the judges said in response to Sibal’s claim that the former CJI’s communication triggered the removal motion against Justice Varma.
Earlier, at the start of the hearing, Sibal criticised the findings of the probe panel, which, according to him, did not hold an enquiry to find out whose cash it was. “He categorically said the cash does not belong to him,” the senior counsel submitted.
At this, the bench told him that it would not hear him on the veracity of the report since the judges were not privy to it, and since it was not part of Justice Varma’s petition. The counsel was told to provide a copy of the report to the judges if he wanted to assail it in court.
It was then that Sibal was asked to address the court on the point of law and establish that the procedure adopted violated the Constitution, a point raised by Justice Varma in his petition.
The judges, however, pointed out that from Justice Varma’s petition few events related to the incident were accepted. “The fire incident is not in dispute nor is recovery of cash. Your staff was there, that is not in dispute. What your case is that you have been sought to be framed,” the judges told Sibal.
To reinforce that the in-house enquiry report was meant for internal action and institutional remedial measures, the bench posed a hypothetical situation to Sibal.
“Suppose Parliament is in session and a particular judge does something wrong that is prohibited by the Bangalore principles (related to in-house enquiry procedure). If a well-meaning citizen writes to the chairman of the two Houses to initiate and if the members (of the Houses) choose not to proceed then how do we deal with the complaint?” Justice Dutta asked Sibal.
The senior counsel replied that the citizen would approach the court, which could order an in-house procedure.
Continuing with his query, Justice Dutta said: “So, you fall back on the in-house procedure. What is the worth of the finding (of this procedure)? It is not evidence. So, how are you aggrieved by it?”
He then went on to advise Justice Varma: “You have a chance. This committee (to be set up by Parliament under the Judges’ Enquiry Act) is much broader. And you have not been convicted.”
The bench then fixed Wednesday to hear the case again. It asked Justice Varma to place on record the three-member in-house enquiry panel report for its perusal.
(Edited by Viny Mishra)
Also read: Clean-up job by Justice Yashwant Varma’s aides: What panel probing judge cash row found