Cash row case: ‘Why did you wait for the inquiry to be completed?’ SC asks Justice Yashwant Varma

On Monday, the Supreme Court was hearing Justice Varma’s plea seeking invalidation of the inquiry committee’s report. The plea does not reveal Justice Varma’s identity and is titled, “XXX v. The Union of India”.

Senior Advocate Kapil Sibal, who appeared for Justice Varma, told a bench of Justices Dipankar Datta and A G Masih that whatever had happened till now was unconstitutional. “All that has happened is completely contrary to the Constitutional scheme. The release of tapes, putting it on website, and a public furore consequential thereto, public discussion, media interaction, accusations against the judge… is all prohibited…The whole procedure has now become political. I (Justice Varma) have already been convicted,” he said, referring to the video clip which purportedly showed the recovery of burnt currency notes.

Justice Datta said that impeachment is also a political procedure. Sibal responded that it is so in Parliament, not outside.

The government has made clear its intent to act on impeaching Justice Varma. Last week, Parliamentary Affairs Minister Kiren Rijiju said the notice for removal of Justice Varma was likely to be taken up in the Lok Sabha in the ongoing Monsoon Session.

Justice Datta asked Sibal why he had not challenged the release of the video and the constitution of the committee before the inquiry. “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 to 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.

“Because it was all in public, I (Justice Varma) thought the committee will find who it (the money) belongs to,” Sibal told the bench.

At the very outset on Monday, Justice Datta raised a procedural objection. “This petition should not have been filed. There are three respondents (in the petition), your main issue is with the Supreme Court,” he said.

Sibal said he would make the required changes. He submitted that a judge can only be removed as per the terms of the procedure laid down in Article 124 of the Constitution.

In his plea filed in the Supreme Court on July 18, Justice Varma said: “Primarily, the In-House Procedure, adopted via a 1999 Full Court Resolution to handle complaints against judges and preserve judicial independence while maintaining public faith, unjustifiably extends beyond the intended scope of self-regulation and fact-finding. By culminating in recommendations for removal from constitutional office, it creates a parallel, extra-constitutional mechanism that derogates from the mandatory framework under Articles 124 and 218 of the Constitution, which exclusively vest powers for removal of Judges of the High Courts in Parliament through an address supported by a special majority, following an inquiry under the Judges (Inquiry) Act, 1968.”

“There is a process under Article 124. Before that, a judge can’t be subject matter of public debate. Motion is filed through Speaker or Chairman of LS or RS…till that stage, that process is not of the House, the process is outside and Speaker acts as a statutory authority. Judges’ conduct can’t be discussed. What happened, tape is released on March 22, the whole country talks about it, man already stands convicted,” Sibal argued.

Sibal also asked how the then CJI Sanjiv Khanna could have recommended Justice Varma’s removal to the President and Prime Minister, saying the CJI has no such power. Justice Datta said the recommendation was done for the initiation of due process. “It could not have been done by the CJI…That’s contrary to the constitutional scheme,” Sibal said.

To his argument that it was wrong to forward the inquiry committee’s report to the President and the Prime Minister, Justice Datta pointed out that the matter has to be placed before the President who is the appointing authority for Judges of constitutional courts. He said that as the President acts on the aid and advice of the Council of Ministers, there is nothing objectionable in forwarding it to the Prime Minister either.

Sibal contended that the committee had not found out who the cash belonged to. The court said it would have to see the report if he wanted to argue on its contents and pointed out that the report must be annexed with the petition. Sibal agreed to do so.

The court will now hear the matter on Wednesday.