- Justice Yashwant Varma challenged the Supreme Court's action after cash was recovered from his Delhi home
- The Supreme Court noted the petition was improperly filed and the main grievance lies with the court itself
- Senior Advocate Kapil Sibal argued the removal process did not follow constitutional due process
Hearing Justice Yashwant Varma's plea challenging the Supreme Court's action against him following the cash recovery from his Delhi home, the top court today said the petition "should not have been filed like this" and that the judge's "main issue is with the Supreme Court".
"This petition should not have been filed like this. Please see, the party is registrar general here and not secretary general. The first party is (the) Supreme Court as your grievance is against the process mentioned," the bench of Justice Dipankar Datta and Justice Augustine George Masih said.
According to the Supreme Court website, the petition, filed by the judge under the name 'XXX', has three respondents: (1) The Union of India (2) Supreme Court of India (3) Supreme Court of India.
Justice Datta also took exception when he found that the report of the three-judge panel, which probed the allegations against Justice Varma, had not been attached to the petition. "Where is the report of the three-judge panel?" he asked. When Senior Advocate Kapil Sibal replied that the report is in public domain, Justice Datta replied, "No, you should have attached the report with your plea."
Arguing the matter, Mr Sibal pointed to the rules laid down in the Constitution for the removal of a judge. He flagged the action against Justice Varma and said it did not follow due process.
"The constitutional scheme appears to be that unless the misconduct etc is proven on the ground of proven misbehaviour etc, there cannot be a discussion of judges' conduct even in the parliament. If the Constitution scheme is that such conduct cannot be discussed even in Parliament till such misconduct is proven, then it is difficult to believe that such an action is acceptable elsewhere. All the release of tapes, putting on website, and a public furore consequential thereto, media accusations against judges, findings by the public, discussing conduct of judges... all are prohibited. If the procedure allows them to do that, then it is violative of the constitution bench judgment," he said.
The top court referred to former Chief Justice Khanna's letter to the Prime Minister and President, recommending action against Justice Varma. "How do you know the letter asked for impeachment? The letter is not in the public domain," the court asked.
When Mr Sibal said the cash was found in the outhouse and questioned how it could be attributed to the judge, Justice Datta responded, "Police, FIR, staff, all were there and cash was found." The senior lawyer replied that the judge's staff were not present. When Justice Datta asked if Mr Sibal was saying that the committee's report is not worth it, he replied, "No, it's not."
"Why did you not challenge when (the) committee was appointed, why did you wait? Judges have abstained from attending these proceedings in the past," Justice Datta asked. Mr Sibal said Justice Varma appeared before the committee because he thought it would find out who the cash belonged to. The case will be heard next on Wednesday.
Justice Varma made headlines after a massive cash recovery from his Delhi residence during a fire. Following the incident, which triggered allegations of corruption, he was transferred to the Allahabad High Court from his earlier posting in the Delhi High Court. The then Chief Justice Sanjiv Khanna formed a three-judge panel to investigate the matter. Following the panel's report, the then Chief Justice recommended Justice Varma's removal.
The judge has now challenged this action. The judge has said that the Supreme Court's recommendation for his removal based on the panel's report "usurps parliamentary authority to the extent that it empowers the judiciary to recommend or opine on the removal of Judges from constitutionally held office".
"This violates the doctrine of separation of powers, which is part of the basic structure of the Constitution, as the judiciary cannot assume the role reserved for the legislature in the removal of judges," it says.
