Justice Yashwant Varma - the ex-Delhi High Court judge likely to be impeached after "piles of burnt Rs 500 notes" were found at his home - has offered the Supreme Court five reasons why he must not be sacked. These include questions over the jurisdiction and authority of an in-house committee - set up by ex-Chief Justice Sanjiv Kumar - to investigate a sitting judge.
Justice Varma argued the committee ignored questions he had raised, and that could speak to his innocence, and denied him a fair hearing. He also argued that neither the Chief Justice nor the Supreme Court had 'power of superintendence', i.e., they cannot take disciplinary action against High Court judges, because their tenure is protected by the Constitution.
The in-house committee red-flagged by Justice Varma consisted of Sheel Nagu, the Chief Justice of the Punjab and Haryana High Court; GS Sandhawalia, the Chief Justice of the Himachal Pradesh High Court; and Karnataka High Court judge Justice Anu Sivaraman.
Justice Varma's Objections
In-house procedure lacked legal sanction -
Justice Varma has argued the three-member committee that investigated him and the recovered burnt piles of cash lacked authority to recommend his removal from office.
In-house panels - a procedure adopted by the Supreme Court in 1999 - are 'administrative in nature', he said, and have a limited function, i.e., they can only act in a fact-finding capacity.
He argued that allowing such committees power to recommend impeachment risks creating an extra-constitutional framework that breaks from Articles 124 and 218 of the Constitution, which outline procedure to remove a judge of the Supreme Court or any High Court.
The Judges (Inquiry) Act, he argued, would have been a better balanced option in this case.
Improper investigative procedure -
Justice Varma further argued the investigation process was flawed from the outset because it began without a formal complaint of wrongdoing against him, and made "sweeping conclusions without concrete evidence'" It relied on the "presumption", he said, that the cash was his.
He said the committee also ignored key questions - 'who placed the cash', 'was the money genuine', and 'what caused the fire' - that are central to establishing his guilt or innocence.
Scraps of burnt Rs 500 notes allegedly found at Justice Yashwant Varma's home.
Finally, Justice Varma also argued the committee had failed to offer him a fair hearing to respond to the allegations and explain the money found on the grounds of his bungalow.
The committee, he said, denied him access to evidence it collected and examined key witnesses in his absence, all of which violate the principle of natural justice.
In earlier and comparable situations judges were granted personal hearings - to explain themselves - before action was taken against them, he said.
Media trial caused damage to reputation -
The discovery of the burnt cash at his home - the money was found on Holi by firefighters trying to put out a blaze that had spread to the outhouse - made national headlines for weeks.
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Questions were raised over the sanctity of the judiciary and the possible erosion of public trust, prompting the release of a (partly redacted) initial report into the finding of the money.
Justice Varma has argued the release of that report, and a Supreme Court press release on March 22 that made public the allegations against him, caused irreparable damage to his reputation and career as a judicial officer, and violated his right to dignity.
Visuals from the burnt outhouse on Justice Varma's bungalow grounds.
He also noted that sections of the final report, i.e., the in-house Supreme Court committee, which was meant to be confidential, had been leaked and "misrepresented" by the press.
This aggravated potential damage to his reputation and undermined the sanctity of the investigative process, Justice Varma told the Supreme Court.
Impeachment recommendation is unconstitutional -
Justice Varma also questioned the letter sent by then-Chief Justice Sanjiv Khanna to President Droupadi Murmu and Prime Minister Narendra Modi, recommending he be impeached.
Justice Varma - who was transferred back to the Allahabad High Court after the cash was found - has argued the former Chief Justice did not have the power to seek his removal, and that this can only be done by the President of India, as outlined in the above articles of the Constitution.
Not given time to read report -
Finally, Justice Varma also argued then-Chief Justice Khanna did not give sufficient time for him to review the final report. He claimed impeachment was recommended to President Murmu and Prime Minister Modi "within hours" of Chief Justice Khanna getting that report.
Government To Seek Impeachment?
Last week sources told NDTV the government may introduce an impeachment motion against Justice Yashwant Varma during the monsoon session of Parliament, which begins Monday.
READ | Centre Seeks All-Party Consensus To Impeach Judge In Cash Row
The government has been assured of support from the opposition on this topic, sources said.
READ | Centre To Bring Parliament Motion To Sack Judge In Cash Scam Row: Sources
This was days after the Supreme Court-appointed panel recommended Justice Varma be removed. The panel's 64-page report was accessed by NDTV and these are the operative bits.
The first is on page 60 - "... this committee holds the money/cash was found in the storeroom located within the premises of 30 Tughlaq Crescent... officially occupied by Justice Varma".
READ | "Proof Cash Found At Justice Varma's Home": Probe Panel's Findings
The second is on page 59 - "... access to the storeroom was with Justice Varma and his family members, and (was) well-monitored without any outsiders getting access without permission".
No judge in independent India has been impeached, although there have been five it was a possibility. The most recent case was in 2018 and involved ex-Chief Justice of India Deepak Misra, who was accused of administrative misconduct and arbitrary allocation of cases.
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