Impeachment On Cards For Justice Varma ?

Now that a three member Inquiry Committee has been constituted by the Chief Justice of India(CJI) and Justice Yashwant Varma (J.Y.V.) of Delhi High Court is being transferred to Allahabad High Court (A.H.C.), Allahabad H.C. Bar Association (AHCBA) and several others have demanded that the tainted Judge be impeached to overcome shameful episodes of Indian Judiciary and investigations be started by CBI and ED

Anil Tiwari, AHCBA head has further requested CJI to permit filing of an FIR. If need be, JYV should be taken into custody for questioning and interrogation with his prior permission. It has also demanded that all judgements delivered by the Judge in both the High Courts be put to scrutiny. This is a very uncalled for and impractical demand which should not be conceded.

Stating that High Court was not a Trash bin, Lawyers have proceeded on an indefinite strike with effect from 25th March. They are advising their brethren in Lucknow bench also to resort to the same. This initiative may give them adequate publicity but the common man is bound to suffer.

Controversial Judge Out of Work

Subsequent to C.J.I.’s directive, Justice D.K. Upadhyay,(D.K.U.) Chief Justice of Delhi H.C. (CJDHC) has withdrawn JYV from Judicial duties. He has been relieved of such duties, pending further Inquiry. Cases assigned to him are being given to a different bench.

As regards administrative work, JYV would continue to be part of eleven committees. But he will lose the position of Collegium Judge. That is likely to be given to Justice Pratibha M. Singh.

Transfer would come into effect after the S.C. Collegium sends a recommendation to the Union Government and Centre gives its approval, thereafter.

As such, it is felt that transfer itself is not a punishment. Once Central Government clears his transfer to Allahabad H.C., he may not sit in Court as he will be number nine in seniority.

Ticklish Inquiry

In house Inquiry procedure was adopted by the S.C.in its full Court meeting held in December, 1999. A Committee constituted for the purpose has the powers to devise its own procedure in accordance with rules of natural justice as per a leading national daily.

Looks like the Inquiry, per se, will be a long drawn out , tedious and time taking process as both primary and secondary evidence have been removed. Also it would need to include police and forensic investigations. C.J.,D.H.C. had also stated in his in house report that the entire matter warrants a ‘deeper probe’. In a latest development, five Policemen who had reached site of fire on the fateful night have handed over their mobiles to Delhi Police head quarters with a view to aid the Inquiry.

Opinion of Vice President

The initial reaction of Sri Jagdeep Dhankar, Vice President was positive. He was candid in saying that had such a heap of cash been found with a politician, a bureaucrat or a businessman, a full fledged investigation would have begun by now.

In his capacity as Chairman of Rajya Sabha, he took the matter seriously when raised by Jairam Ramesh, M.P. He called a meeting with Leader of Rajya Sabha and Leader of Opposition in Rajya Sabha.They have decided to await outcome of Supreme Court Inquiry panel .Vice President has expressed the view that CJI had shown alertness by forming a panel and putting all material on public domain, following information about cash discovery row.

He was emphatic in saying that for the first time since independence, CJI has initiated action in a very impactful, accountable and transparent manner. He would also explore mechanisms for a structured discussion. He has also promised to convene a meeting of all floor leaders of various parties in Rajya Sabha. Additionally, he hinted at reviving the debate over the National Judicial Appointment Commission(NJAC), struck down by the Apex Court in 2015. It is the right time to hit the iron when it is hot.

It is felt that discussions in both houses of Parliament should have begun by now in view of the tone and tenor of public opinion, aided and abetted by social media.

Views of Justice (Rtd) Madan Lokur, Ex-S.C.Judge

Justice (Rtd) Madan Lokur in his interview to Karan Thapar on The Wire, said the following :

• In house mechanism for accountability is ineffective, faulty, weak and toothless,

• Selection in Judiciary is often selective and arbitrary,

• Collegium system needs serious amendment.

• Undeserving and wrong persons can be appointed and more deserving are excluded and not elevated,

• 95% of Supreme Court Judges are chosen from High Court Judiciary, so Supreme Court will get afflicted in due course,

• Parliament should pass a law in consultation with Judiciary,

• Widespread national debate should be held to discuss the method and procedure to choose judges.

Mukul Rohtagi, Former Attorney General

He has also rightly opined in his talk over NDTV that in view of disappearance of burnt currency notes, circumstantial evidence now gathers prime significance in this case. He has contended that it is not proper to say that transfer has nothing to do with discovery of cash.Talking of Collegium, he felt that it was an opaque system. He wishes to know how the element of ‘consultation’ of the government with the judiciary for appointment was allowed to become ‘concurrence’ of the CJI of S.C.

He has consented in favour of a system of disciplinary proceedings against the erring Judges. We need a more smoother system than Impeachment as attempts made to apply it have failed, in his view.

Constitutional Provisions

Article 124(4) of the Constitution and Judges Inquiry Act,1968 provides for Impeachment of Judges. It is a constitutional remedy to address serious offences against the system of Government. Article 218 further states that the same provisions shall apply in respect of a High Court Judge.It is the first stage of removal from public office and possible disqualification from holding further office. The Constitution lays down that a Judge can be removed only by an order of the President of India based on a motion passed by both the houses of Parliament. At Least one hundred Members of Parliament have to give notice for Impeachment. Procedure has been elaborated in the Judges Inquiry Act,1968.

So far 6 (six) attempts have been made to impeach judges but no one could be removed.Closest case was that of Justice V. Ramaswami, Judge of S.C. in 1991-93. He was found guilty of misuse of T.A., D.A., official vehicles and carrying out extravagant expenditure on renovation of his official residence twice, when he was C.J. of Punjab & Haryana H.C. (P & HHC).

An Inquiry Committee comprising of three Supreme Court Judges was subsequently set up. Neither did he appear nor he sent a counsel to represent him.The Chairman of Committee found him guilty of 11 of the 14 charges framed against him.

After 100 M.P.’s of Lok Sabha gave a notice to the Speaker, Lok Sabha, Impeachment motion was discussed in detail. But not all members appeared in favour of taking action. Of the 401 members present, only 196 voted in favour of the motion on 11th May, 1993 and a huge number of 206 Members belonging to Congress and other parties ABSTAINED. So as against the requirement of 2/3rd Members present and voting, even a simple majority did not lend their support.

Justice Ramaswami was allowed to retire (without work) after one year and he never tendered his resignation.Thus play of politics was at its best. Had the Lok Sabha accepted the resolution, Justice Ramaswamy would have been the first Judge to be removed from office.

Case Of Justice Nirmal Yadav of Punjab & Haryana High Court

This is a case registered in Chandigarh on 13th August 2008 which is yet to be closed. A packet containing Rs.15 Lakhs in cash was ‘mistakenly’ delivered at the official residence of Justice Nirmaljit Kaur (JNK). She filed a complaint with the Police. They said it was actually for Justice Nirmal Yadav (JNY). On what basis Chandigarh Police said so, could not be known. JNY proceeded on leave upon being named. She was transferred subsequently to Uttarakhand High Court. Soon the CBI took over this case. JNK was cleared later by the CBI and a panel constituted by the Supreme Court.

As regards involvement of JNY, CBI filed a closure report stating that no case was made out. The designated Court of CBI, however, rejected the finding and asked CBI to carry out fresh investigation. On 28 July, 2010, CJI accorded sanction to CBI to prosecute JNY, followed by Presidential consent on 3rd March 2011, a day before she was to retire. Case is still pending even when 76 prosecution witnesses have been examined out of 85 listed in the charge sheet.

Not only JNK suffered for no fault of hers, the trauma of 17 years by JNY can be also understood. It is a classic case of harassment of Judges by CBI and fellow Judges. JNY has been put in difficulty even during her retirement phase. Once guilt was proved, requisite punishment could have been given.

Concluding Remarks

Another saga of use of unfair means in public life is soon to be divulged. One has to wait , however to know the nitigrities. Despite high salaries and perks, the urge for more material gains has not surged. These do not reach a nemesis.Those having right connections climb the ladder swiftly, those bereft of these, continue to lag behind. Judiciary, in addition to the often controversial and maligned legislature and executive, also hits the headlines. Presiding officers of this third pillar of democracy often forget that they are lenders of the last resort for the Aam Aadmi. Also the decision by AHCBA to proceed on strike is bound to go against the poor and deserving litigants.

Shall we say that with the transparent and impactful initiative of the C.J.I., one can see light at the end of the tunnel ? Time is the crucial factor. And time and tide wait for none.

Whatever may be findings of the Inquiry Committee, reputation and transparency shown by the Chief Justice of India has been highlighted.

(The author is former Chief Secretary of Sikkim)