Varma moves SC for quashing of inquiry report, questions in-house procedure validity

NEW DELHI: Ahead of a possible removal motion in Parliament’s monsoon session, Justice Yashwant Varma moved Supreme Court for quashing of an in-house inquiry report holding him guilty for the huge illicit cash at his official residence in Delhi and challenged the constitutionality of then CJI Sanjiv Khanna’s recommendation to the Centre to strip him of HC judgeship.

Justice Varma, whose defence team is led by senior advocates including Kapil Sibal, filed the petition faulting the process adopted by the three-member panel to inquire into the cash allegedly found at his bungalow, terming the panel’s conclusions about his guilt as mere surmises without evidence.

Varma questions validity of in-house procedure that allows CJI to recommend removal of judge

Interestingly, the day saw a PIL being filed in the SC by advocate Mathews Nedumpara seeking registration of an FIR for the unaccounted cash that was discovered within the premises of the judge’s official residence by first responders who reached after a fire on the night of March 14. Many former judges of Delhi HC shared the view of the PIL petitioner and said only a thorough investigation by a probe agency could unravel the money trail.

In the writ petition filed through advocate Vaibhav Niti, Justice Varma asked why Delhi Police and Delhi Fire Service personnel, who discovered the cash, did not seize it or prepare a ‘panchnama’, which alone could have been admissible evidence. He accused then CJI Khanna of subjecting him to a media trial by uploading unsubstantiated material against him on the SC’s official website.

Repatriated to Allahabad HC during the inquiry, the judge said the panel’s report was handed over to him on May 4 and the then CJI “advised him to resign or seek voluntary retirement by 7pm on May 6, failing which the CJI would ‘intimate competent authority to initiate action for his removal’”.

The judge, who had been barred from judicial work, said he was denied a personal hearing he had sought, as per the in-house procedure, before the CJI and senior SC judges, prior to the CJI sending the recommendation to the President and the PM on May 8, just five days before CJI Khanna retired.

He requested that SC declare the CJI’s recommendation unconstitutional and ultra vires. He also questioned the constitutional validity of the in-house procedure that empowered the CJI to recommend removal of a constitutional court judge.

This in-house process “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 high courts in Parliament through an address supported by a special majority, following an inquiry under the Judges (Inquiry) Act, 1968”, he said.

Justice Varma said power to remove constitutional court judges was given to Parliament by the Constitution after conducting a thorough trial of the charges against a judge with in-built safeguards including framing of charges, cross-examination, and proof beyond reasonable doubt for ‘proven misbehaviour’.

Thus, the in-house procedure, as far as it usurps parliamentary procedure to recommend removal of judges, violates the doctrine of separation of powers. Judiciary cannot assume the role reserved for the legislature in the removal of judges, Justice Varma said.

He said the Constitution conferred no disciplinary or superintendence power with the CJI over HC or SC judges. Thus, the CJI cannot assume, through in-house procedure, an unregulated authority to act as the arbiter of the fate of HC and SC judges, he said.

Justice Varma’s challenge mirrors the line Sibal took on his YouTube show last week to dissect the inquiry report with panellists: former SC judges Justices Madan Lokur and Sanjay Kaul and ex-Delhi HC judge Justice Mukta Gupta. In the show, Sibal argued that the in-house inquiry was not consistent with constitutional provisions.

Cong MPs to sign motion in LS against Justice Varma
Congress MPs will sign the motion that govt will bring in Lok Sabha against Justice Yashwant Varma, with the party saying it will be done to set up a 3-member statutory panel which is required under Judges Inquiry Act before a judge’s removal. Party general secretary Jairam Ramesh said opposition will also push govt to move on the motion to remove against Allahabad HC judge Shekhar Yadav, who is accused of making “hate speech”.

Ramesh slammed non-registration of an FIR against Varma, saying the entire process has been based on a report of the in-house panel of SC. He said Justice Yadav violated his oath with his speech but the notice to remove him is pending with Rajya Sabha chairman for past seven months.

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