SC questions Justice Varma's conduct, says he moved the apex court only after in-house inquiry results became ‘unpalatable'
The report of an in-house inquiry committee of three judges had confirmed the presence of 'burnt currency' in a gutted outhouse at Justice Varma's residential premises in New Delhi after a fire in mid-March. The in-house inquiry, appointed by the then Chief Justice Khanna, had recommended his removal. Chief Justice Khanna had forwarded the report to the President and Prime Minister in May, seconding the recommendation of the inquiry panel.
A Bench of Justices Dipankar Datta and A.G. Masih said the in-house procedure was carefully devised through multiple Supreme Court judgments as a mechanism to preserve the institutional integrity and moral vigour of the judiciary. Article 141 of the Constitution made apex court judgments binding on all.
Justice Datta said the in-house procedure had been in existence for over 30 years now. Every High Court or Supreme Court judge, including Justice Varma, knew since the time of taking the oath of office that she or he would be subject to a probe if the situation called for it.
The Chief Justice of India was not a 'post office' to blindly pass on complaints or allegations to the Parliament, Justice Datta said.
The Bench explained the in-house procedure was meant to fill a 'yawning gap'. It was a procedure in which a CJI-appointed committee held a preliminary inquiry into the allegations in order for the CJI to take an informed decision, and if required, recommend the removal of a judge.
The Bench said Justice Varma, having once submitted to the jurisdiction of the in-house panel, could not turn back and call it 'illegal'.
'Once the High Court judge has submitted to the in-house inquiry procedure, he has to accept the outcome. His conduct does not inspire. He has challenged the procedure once the outcome became unpalatable,' Justice Datta said.
Senior advocate Kapil Sibal said if the in-house procedure was so sacrosanct, what was the need for a motion in the Parliament. The former alone would suffice to remove a judge. He argued Articles 124 (4) and (5), and Article 218 provided a complete mechanism for removal of a judge.
'Any other mechanism is outside the Constitution,' Mr. Sibal said.
He urged the point that Justice Varma had no other place except the Supreme Court to challenge the in-house inquiry and the recommendation to remove him.
'The High Court judge cannot challenge the in-house inquiry report, which has triggered the removal motion, in the Parliament. That is why I have come to the Supreme Court now,' Mr. Sibal submitted on behalf of Justice Varma.
He contended that the in-house inquiry process was only an 'informal, administrative exercise' with no strict or codified standards of evidence, unlike the probe under the Judges Inquiry Act.
'Yet, the in-house inquiry report and the CJI's recommendation for removal has sounded the death-knell… become a trigger and a prompt for the removal of the High Court judge. It is evident that the report and the recommendation of the CJI has more than a persuasive value as the Parliament has already commenced his removal motion,' Mr. Sibal submitted.
The senior lawyer said the CJI had only a moral and ethical power over other judges. He could not embark on a probe against a judge and recommend the latter's removal.
However, Justice Datta referred Mr. Sibal to Section 3(2) of the Judges (Protection) Act, 1985. Section 3(2) provided the Centre, State, Supreme Court, a High Court or any other other authority 'to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a judge'.
Justice Datta asked whether in-house procedure would come under the ambit of 'otherwise' in the provision.
'If so, the CJI has not only moral and ethical but also legal power too,' Justice Datta observed.
Senior advocate Mukul Rohatgi, also on behalf of Justice Varma, said that in earlier cases of in-house procedure, the judge in question was given an opportunity to present his views before and after the in-house inquiry report. But this had not been followed in the current case.
The Bench reserved judgment on the petition challenging the validity of the in-house procedure against Justice Varma, and the subsequent recommendation of Chief Justice Khanna (now retired) to remove him.
The court also reserved a decision on advocate Mathews Nedumpara's petition seeking registration of a criminal case against the High Court judge.
Justice Datta had asked Mr. Nedumpara whether he had even filed a complaint before the police for the registration of a First Information Report.
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