How Can You Challenge In-House Inquiry After Participating In Process? Supreme Court Asks Justice Yashwant Varma

As soon as the matter was taken, Justice Datta objected to the Union of India being made a respondent. "This petition should not have been filed so casually, maybe it missed your notice also. There are three respondents, your main grievance is against the Supreme Court. Union of India, not required. Supreme Court, through the Registrar, confidential, not required. Main is, Respondent no. 2, through whom the Supreme Court is to be represented, Secretary General," Justice Datta said. Senior Advocate Kapil Sibal, for the petitioner, agreed to change the memo of parties.

Sibal argued that a judge can be removed only as per Article 124 of the Constitution and not through public debates based on the report of the in-house inquiry committee, which he alleged did not follow due procedure. 

 "There is a process under Article 124(5); before that, a judge can't be the subject matter of public debate. That is set out by the sub-committee judgment of the Supreme Court constitution bench. The motion is filed through Speaker or Chairman of Lok Sabha or Rajya Sabha and that motion is kept pending, if the Speaker admits the motion, the Judges Enquiry Committee is set up. Till that stage, that process is not a process of the house. That is also have been held by the five judge bench of this Court. The process is outside the House and Speaker acts as a statutory authority and therefore, it cannot be challenged. The constitution bench judge also holds that till that process is initiated and completed, the judge's conduct can't be discussed anywhere.

What happened in this case, tape is released on March 22, the whole country talks about it, completely contrary to the constitution bench judgment.  The man stands already convicted. And what are the questions asked? You please explain where you got this cash from. He says, look, it doesn't belong to me. Nobody inquires into that, and what are the three adverse inferences? Why did you not go straight place and why did you go to your mother. When the transfer was made, why did you not object?" Sibal argued. He argued that the judges' panel cannot make a recommendation for impeachment, as it is completely within the domain of the Parliament.

He also added that to relieve a judge from discharging his judicial function cannot be granted in the meantime. In this context, he said that the in-house procedure is contrary to this understanding.

"All that has happened thus far is completely contrary to the Constitution- release of tapes, putting it on website, and in public furore consequential thereto public discussion, media interaction, accusation against the judge, findings by public discussing conduct of judge is all prohibited- that is the question that arises for the Lordships' consideration. If that procedure allows them to do that, that procedure is contrary to the judgment itself...procedure has become political," Sibal submitted while referring to the 1991 judgment on Sub-Committee On Judicial Accountability. By the release of the report's findings, the process has been politicised, he argued.

Justice Datta, however, said that even the impeachment process is political. The Judge also observed that the petitioner cannot raise these points after having participated in the inquiry by the in-house panel. 

"Why did you appear before the procedural committee? Why didn't you challenge it then and there? Can we say that you took a chance of favourable findings? You are a constitutional authority, you can't say I don't know or I am not aware of what the reinstatement of judicial norms are...You should have immediately come to this court and obtained order," Justice Datta observed. Sibal submitted that he was already convicted by the public and the Committee was set up on March 25 where had raised the contentions.

Sibal also took objection to the Chief Justice of India recommending to the President and the Prime Minister the removal of the petitioner. He said that as per the in-house procedure, it was not within the CJI's authority to recommend the removal of a judge. He further submitted that forwarding the report to the President and the Prime Minister was wrong, as an impeachment motion is to be sponsored by the MPs and not the government.

Justice Datta, however, disagreed, saying that as the appointing authority, the matter has to be placed before the President. Since the President acts as per the aid and advice of the Council of Ministers, forwarding it to the Prime Minister is also not problematic. And just because the former CJI has written it to the President, it does not mean that he is trying to "persuade" the House to initiate impeachment, the Judge added. He said: "The procedure which contemplates a preliminary inquiry, how can that be bad?" 

Sibal said that it can't be a basis of impeachment while referring to the letter of the former CJI to the President stating that there is proven misconduct. He further claimed that there was no "misbehaviour" proven against the judge.

"If cash has been found in the outhouse, what is the behaviour of the judge to be held? There is no allegation of behaviour, forget misbehaviour?" Sibal asked. But the bench pointed out that he has neither denied the presence of cash nor the fire incident.

"But it doesn't belong to me. They have not found who does the cash belong to," Sibal stated. Sibal was quick to clarify that he was not going into the merits of the matter at present and was not questioning the sanctity of the procedure. He is only questioning the recommendation made by the former CJI to the President.

Justice Datta replied that it is the procedure which provides for the CJI's recommendation, and challenging that would mean challenging the whole procedure. He said: "The most important thing is, the recommendation is for the initiation of the proceedings." He added in-house report is only a preliminary ad-hoc report and does not constitute evidence per se.

"The in-house procedure, its just a ad hoc preliminary finding that we have material on the basis of which a proceeding can be initiated. What is the worth of these findings? It's not evidence, because evidence has to be produced before committee as per the Judges Inquiry Act. What is the worth of this findings? If its not worthy of being considered, how are you aggrieved?" Justice Datta argued. Sibal claimed that the impeachment motion has been moved on the basis of the in-house report, and it cannot be done by the CJI as it is only the Parliament's prerogative. 

"In the meanwhile, I have been convicted by public, the video was released," Sibal added. Justice Datta then asked why the petitioner didn't approach the Supreme Court earlier challenging the in-house inquiry as well as the publication of the videos and pictures of the fire incident.

"Did you come to the court to request that the video be removed? Why did you wait for the inquiry to be completed and the report be released? Why did you not challenge when the committee was appointed? Why did you wait? Judges have abstained from attending these proceedings in the past. You could have approached us earlier as well," Justice Datta said. Sibal replied, "Because it was all in public, I thought the committee will find who it[cash] belongs to."

Ultimately, the bench adjourned the hearing till Wednesday, asking Sibal to place on record the report of the in-house committee. Senior Advocate Siddharth Luthra also appeared for Justice Varma.

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.

The committee submitted its report to CJI Khanna in May, which the CJI forwarded to the President and the Prime Minister for further action, after Justice Varma refused to heed the CJI's advice to resign.

The 3-judge in-house inquiry committee termed Justice Varma's conduct after the fire incident on March 14 - which led to the discovery of the currency notes - unnatural, leading to certain adverse inferences against him.

After examining 55 witnesses, including Justice Varma and his daughter, and electronic evidence in the form of videos and photographs taken by the members of the fire brigade, the committee held that cash was found in his official premises. Finding that the storeroom was within the “covert or active control of Justice Varma and his family members”, the committee held that the burden was upon him to explain the presence of cash. Since the judge could not discharge his burden by offering a plausible explanation, except giving a "flat denial or a bald plea of conspiracy", the committee found sufficient grounds to propose action against him.

Last week, MPs from Rajya Sabha and Lok Sabha circulated notice of impeachment with the requisite signatures. 

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