Opinion In Justice Varma case, due process, not media trial will deliver justice

Recent allegations concerning Justice Yashwant Varma have sparked public scrutiny and provoked sharp commentary. While accountability is vital, it is equally important to ensure that the constitutional safeguards and legal principles that govern such inquiries are respected. The judiciary, as an institution, must be protected from premature judgements that risk eroding public trust. For sitting high court judges, the in-house inquiry procedure requires the CJI to initiate a fact-finding probe by a three-member committee comprising two chief justices of high courts and one high court judge. ensuring that complaints are dealt with systematically and confidentially.

It is equally important that such allegations are not handed directly to the police for investigation, particularly at the initial stage. The police form part of the executive and handing over judicial complaints to them without preliminary institutional scrutiny would compromise the constitutional principle of separation of powers. This is critical as the government is the largest litigant, accounting for nearly 50 per cent of all pending cases. Maintaining judicial independence requires that internal mechanisms be respected before involving investigative wings of the executive.

Until such an inquiry concludes, any presumption of guilt undermines the presumption of innocence — a foundational principle of justice. Media and public discussions must respect this process.

This necessity mirrors established protections for public servants. Section 17A of the Prevention of Corruption Act bars investigation without prior sanction. Judicial interpretation of the requirement for a preliminary inquiry or a prior sanction led to the insertion of Section 6A in the Delhi Special Police Establishment Act, requiring prior approval before initiating investigations against senior public officials. The provision, after being struck down, found its way into the PC Act by an amendment in 2018 in light of growing concerns about harassment of honest officials. The intent was to provide procedural safeguards for decisions taken by a public servant in the discharge of official functions.

Section 19 of the same Act requires sanction before a court takes cognisance. The Lokayukta Act mandates a preliminary inquiry before proceeding against high-level officials. The Lokayukta is headed by a retired SC judge, and at least half the members are required to be judicial members, ensuring judicial oversight for preserving institutional independence while maintaining robust scrutiny.

When Parliament contemplates impeaching a judge, the Judges (Inquiry) Act, 1968 must be followed. It contemplates a preliminary investigation by a committee comprising an SC judge, a chief justice of a high court, and a distinguished jurist. The requirement of impartial fact-finding before action is consistent across all levels of the judiciary.

The Constitution Bench in Lalitha Kumar’s case has provided for preliminary inquiries in relation to public servants in corruption cases as well as private persons in  matrimonial and commercial disputes and doctors in medical negligence cases. Recently, the SC has mandated a preliminary inquiry to protect journalists and others in freedom of speech cases. Such safeguards exist not to protect the guilty, but to ensure procedural fairness. The judiciary deserves no less.

Unlike politicians, bureaucrats or private persons, judges cannot respond publicly to allegations. Judicial propriety demands dignified silence. This puts them at an inherent disadvantage when faced with media scrutiny or public criticism. Trial by media transforms the presumption of innocence into a presumption of guilt, a trend that is especially dangerous in the digital age.

A key tenet of judicial ethics, as outlined in the Restatement of Values of Judicial Life, is that judges must remain impartial and avoid controversies. Public discourse on allegations risks undermining the judiciary’s independence. Hence, institutional mechanisms — not public commentary — must address complaints.

The discovery of cash is often equated with wrongdoing. But this assumption is flawed. India remains a largely cash-based economy despite a digitisation push. Many people, even in high offices, may legitimately possess cash.

It is important to distinguish between impropriety and corruption. Impropriety may involve lapses in judgment or failure to meet expected standards, but it does not necessarily imply corrupt intent. Corruption, by contrast, involves misuse of public power for private gain and demands concrete proof. Prosecution must first prove beyond reasonable doubt that the assets are disproportionate to known sources of income.

Courts have held that mere possession of cash is not corruption if the individual offers a reasonable explanation — such as income from agriculture, inheritance, sale of immovable property, jewellery, etc. While such circumstances may raise questions of impropriety, they do not ipso facto amount to corruption unless supported by clear evidence. Courts have acknowledged these distinctions and have acquitted individuals when legitimate explanations were provided.

Constitutional judges’ cases must be approached similarly. No conclusion should be drawn without a full inquiry into the explanations as per law. The judiciary’s credibility depends not just on independence, but also on fairness — both in holding judges accountable and in defending their rights. Judges cannot speak in their own defence; the legal system must speak for them. Until the in-house inquiry reaches a conclusion, it is essential to withhold judgment. Irresponsible commentary risks not just individual reputations, but institutional trust.

The Restatement of Values of Judicial Life reminds us that public confidence in the judiciary is sustained when judges are judged through process — not perception.

Judges, like other citizens, are entitled to the presumption of innocence. Media trial is not a substitute for constitutional process. It is time we reaffirm our commitment to justice — not just in outcome, but also in method.

The writer is a senior advocate