'If Materials Show Misconduct, CJI Has Duty To Forward' : Supreme Court Reserves Judgement On Justice Yashwant Varma's Plea

The Supreme Court today(July 30) reserved judgment on the writ petition filed by Allahabad High Court Judge Justice Yashwant Varma challenging the in-house inquiry report, which indicted him in the case-at-home scandal, as well as the then Chief Justice of India Sanjiv Khanna's recommendation made to the President and the Prime Minister for Justice Varma's removal.

A bench comprising Justice Dipankar Datta and Justice AG Masih heard the matter. The bench also heard a writ petition filed by Advocate Mathews J Nedumpara seeking registration of FIR against Justice Varma.

At the outset, Senior Advocate Kapil Sibal, for Justice Yashwant Varma, summarised the main points of arguments, as follows :

• Judges (Inquiry) Act occupies the entire field relating to the removal of a judge and hence an in-house inquiry cannot lead to a judge's removal.
• If an in-house procedure can trigger the process of removal of judges, then it is violative of Article 124.
• When the CJI recommends the removal of a judge on the basis of an in-house procedure, it holds great persuasive value, since it comes from a high constitutional authority, which can influence the process in the Parliament. By making such a recommendation, CJI is interfering with the domain of the Parliament.

Justice Datta then pointed out that the in-house procedure has its origins in the judgments delivered by the Supreme Court such as K Veeraswami, Ravichandran Iyer. When Justice Datta asked about the relief Justice Varma was asking, Sibal replied that he wanted a declaration that the CJI's recommendation for Justice Varma's removal was "non-est."

"If we were to say Iyer, Indira Jaising and Additional District Judge X is correctly decided, (which formulated the in-house inquiry process), that would be the end of this matter," Justice Datta said. Justice Datta further said that the clause "otherwise" in Section 3(2) of the Judges Protection Act allowed the initiation of in-house procedure and withdrawal of judicial work from a judge.

"Chief Justice [of India] is not supposed to be a post office only. He has certain duties to the nation as the leader of the judiciary. If materials come before him [regarding misconduct], CJI has the duty to forward to the President and the Prime Minister. If on the basis of the material it is found that the misdemeanour is so serious calling for an action, he would be affirming the earlier decisions of this Court saying CJI has the authority to do so," Justice Datta said.

Justice Datta further stated that "in-house procedure" was the law laid down by the Supreme Court as per Article 141. Repeating the query of the last day, Justice Datta further asked why Justice Varma did not challenge the in-house procedure at the commencement itself if he was of the view that the procedure was unconstitutional.

"Tape should not have been leaked" : Bench agrees

However, the bench agreed with Sibal's contention that the videos showing burning of cash currencies should not have been leaked during the procedure.

"We are with you on this for the time being. It should not have been leaked, " Justice Datta said. "But what turns on it?," Justice Datta further asked. He asked if the members of "high calibre" would be influenced by such material. Sibal pointed out that the videos were uploaded on the Supreme Court's website, which would make them seem more credible. He said that politicians and Parliamentarians were making statements based on the images and videos, prejudicing the case against Justice Varma.

Justice Datta then pointed out that Justice Varma never approached the Court seeking their removal.

"Your conduct does not inspire confidence" : Bench to J Varma

The bench took exception to Justice Varma choosing to challenge the in-house inquiry process after participating fully in it.

"Your conduct does not inspire confidence. We did not want to say this, but your conduct says a lot. You could have come. There are judgments which say that once you submit to the authority, there is a possibility that you may have a favourable findings and once you found it to be unpalatable, you came here. A person who is invoking Article 32 jurisdiction, conduct is also relevant," Justice Datta said in the context of the judgment recognising the points on which the judge can approach the Court challenging the committee's report. 

Sibal highlighted that the in-house committee has not found out to whom the money belonged. Justice Datta said it was not an issue before the committee.

"That was not the issue before the committee. What were the issues before the committee? We will be very guarded in our language...you know your case, we are also studying something. Let's not spill something here, leave it for the Parliament to decide...That is not the remit of the committee to find out whose money it is," Justice Datta cautioned against going into the merits of the findings. "Let us not go there," Sibal also agreed.

In-house report only a preliminary finding : Bench 

The bench observed during the hearing that the in-house report was only a preliminary finding, and that the CJI's recommendation was only an "advice"; the removal can be only as per the procedure in the Parliament and not as per the in-house report, the bench pointed out.

"Is Parliament bound by CJI's recommendation?... The CJI feels that it's a case which warrants being reported based on evidence, charges are serious and removal exercise should be undertaken. On the basis of inhouse, the CJI can withdraw judicial work or transfer but for the Parliament, they may or may not take into consideration. It's not binding. It is not removal that is advised. Somebody advising that he should be removed and the initiation of the procedure is different," Justice Datta said.

Though Senior Advocate Mukul Rohatgi also attempted to make arguments for Justice Varma after Sibal, the bench did not allow him, saying that it cannot hear more than one senior counsel for the same party. Senior Advocate Rakesh Dwivedi was also present in the Court for Justice Varma.

Bench questions the basis of Nedumpara's petitions

As regards Nedumpara's petition, the bench asked him at the outset how he got the confidential report, and asked him to file an affidavit showing his source. The bench also observed that without filing any complaint before the police, he has filed the writ petition.

"You can approach the police. If police is not taking action, you can approach the Magistrate. If you have not approached police don't say all this," Justice Datta told him.

On Monday, the bench had asked Varma's counsel to put the in-house enquiry report on record as it was relied on to make arguments. The Court also put questions to Varma, including why he did not challenge the in-house inquiry when he was essentially questioning its sanctity.  

Justice Datta also commented on how it was unnecessary to make Union a party, pursuant to which, Senior Advocate Kapil Sibal assured that they will change the memo of parties.

The crux of Sibal's argument was that a judge could only be removed either on grounds of "proved misbehaviour" or "incapacity" under Article 124(4). The in-house procedure, which allows the Chief Justice of India to write to the President recommending the initiation of the impeachment, is unconstitutional. CJI's recommendation can't be the basis for the initiation of impeachment. However, Justice Datta had remarked that the in-house procedure is only an ad-hoc preliminary inquiry and when its report is not even treated as evidence, the petitioner cannot be aggrieved at this stage.

The issue relates to the accidental discovery of a huge pile of currency notes at an outhouse of the official residence of Justice Varma, then a judge of the Delhi High Court, during a fire-fighting operation on March 14.

After the discovery led to a huge public controversy, the then CJI Sanjiv Khanna constituted an in-house inquiry committee of three judges- Justice Sheel Nagu (then Chief Justice of Punjab & Haryana High Court), Justice GS Sandhawalia (then Chief Justice of Himachal Pradesh High Court), and Justice Anu Sivaraman (Judge, Karnataka High Court). Justice Varma was repatriated to the Allahabad High Court, and judicial work was withdrawn from him pending the inquiry.