By Indira Jaising, Sushovan Patnaik
On June 19, We at The Leaflet took the decision of publishing the coveted 64 page report of the in-house inquiry committee formulated by former chief justice Sanjiv Khanna to investigate the matter of piles of burning currency being discovered at former Delhi HC judge Justice Yashwant Varma’s residence. It was a straightforward, unequivocal decision for us.
The contents of the report, we understood, were surely to further entrench a systemic crisis of faith confronting the judiciary, one we desire to be stronger for the health of our democracy. But the consequence of this opacity was a more overarching concern for us.
It was the right thing to do (in our assessment of Justice Khanna’s tenure as the chief justice, we noted that his unwillingness to put out the report in public, which had been submitted to the Court on May 5, had squandered “an opportunity to reform an opaque procedure in the backdrop of a historic moment for the judiciary”). The report should have been published on the Supreme Court website, not just sent to the President. It was and is the property of the Supreme Court and this duty was owed to the public. The Court’s decision not to publish was our inspiration to publish in public interest. The people, quite simply, had a right to know about the outcome.
On May Day of 1990, a copy of the latest issue of The Lawyers magazine, published then by our co-founder Indira Jaising – which published the full audit report of the Punjab Accountant General of Justice V. Ramaswami – was shared with the chief justice of India. With the shrouded Justice Varma report, The Leaflet experienced a similar journalistic obligation: from the beginning we asked the most crucial unanswered questions and trailed the report closely. Until we had it.
Our reading of these 64 pages is that they are implicatory, and without twisting words, of a major corruption scandal. The committee concludes based on corroborative evidence that cash had indeed been found, that access to the storeroom was under the active or covert control of the judge/his family, that Justice Varma’s private secretary and in-house staff had played an “instrumental role” in removing the cash-piles in the wee hours of March 15, and that neither the judge nor any of the household members did the bare minimum of securing the CCTV visuals.
“This Committee is firmly of the view that there is sufficient substance in the allegations raised…enough to call for initiation of proceedings for removal,” the report concludes.
The more foundational question for us, at this moment, is what must follow now. On May 9, former CJI Khanna had forwarded the letter to the President and Prime Minister. Reportedly the Union government is set to initiate an impeachment proceeding in the upcoming monsoon session and is reaching out to opposition members to build consensus. But there are two important issues to look out for: first, some reports suggested that the government may be looking to bypass altogether the formation of a committee under the Judges (Inquiry) Act. This is unacceptable since it would be a violation of both due process and undermining of a constitutionally enforceable law. Second, difficult matters such as an impeachment of a judge could easily fall through the cracks without an organised campaign and the moral obligation for that rests with the opposition. For this reason, we believe bringing the report out to the public was a necessary step.
Beyond impeachment, there also needs to be serious thought, now that the three-judge committee’s findings are before us, regarding a criminal prosecution against Justice Varma in line with the procedure laid down in K. Veeraswami v. Union of India (1991). Earlier this month, a portion of the Bombay bar pushed chief justice B.R. Gavai to grant the sanction but more cohesive, organised efforts from this point on will be crucial. At the end, the bottom line is to understand who the cash belonged to, and why it was paid.
There are also larger dilemmas in our minds – relating to the health of the republic. The case against Justice Varma is not merely one about eroding public faith in the judicial institution but a symptom of broader incremental democratic backsliding under the current regime. Surely, part of the responsibility has to be borne by the judiciary. Systemic issues with the justice delivery framework (note its discriminatory nature against marginalised communities) in the country have meant that litigation per capita, an indicator of public faith in the judiciary, has remained low, and the opaque, non-accountable manner in which the Collegium functions currently makes the question of access even more difficult.
But perhaps even more concerning is the apparent medley between the executive and the judiciary. Even without the adoption of the NJAC, there is significant evidence to suggest that the executive is exercising a tremendous role in judge appointments to higher courts. Legal scholar G. Mohan Gopal has framed this as a political project in furtherance of the Hindu far-right’s objectives. In the past decade, the institution’s integrity has consistently faced interrogation: while academic Nandini Sundar has pressed on the executive’s reliance on the “neutral judiciary” for “outsourcing several political decisions”, a recent paper has blamed institutional failings for the Supreme Court’s inability to perform its “representative role.”
As the executive weaponises Justice Varma’s impeachment to discredit the Collegium system, it is helpful to remind ourselves that the unbolting of the judicial institution in India under the current regime is due to the transformations in how the judiciary and executive have come to interact under this government. Justice Varma’s impeachment and prosecution, all through due process, should be the leading thought, but without the complex broader picture in the back of our minds, of what might follow the impeachment, the executive’s complicity in the judiciary’s slow disintegration, and what this case tells us about the health of our republic, we might lose our way. (IPA Service)
Courtesy: The Leaflet
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