Justice Yashwant Varma: Trial by Fire

IN ITS DECEMBER 2015 ruling striking down a constitutional amendment that sought to end the monopoly of the judiciary in selecting judges to higher courts, the Supreme Court admitted that the collegium system needed improvements and agreed that the memorandum of procedure (MoP) for judicial appoint­ments had to be improved to ensure greater transpar­ency. The window the Supreme Court opened for a review of the procedures by which appointments to constitutional courts are made has all but closed almost a decade after the apex court affirmed the supremacy of the collegium system.

The innocuous-sounding MoP has led to endless correspon­dence over its provisions that without resolution amount to a continuance of the system the apex court felt needs to be bettered. The points of contention? The most talked of provision relates to the government’s right to reject a candidate on grounds of “national security” which the Supreme Court does not want to be part of the MoP. Yet, despite the deadlock, the government has not hesitated to withhold appointments if a candidate for judgeship has received an adverse report from security agencies as part of the background check. The clause relating to na­tional security could possibly be subject to conditionalities, such as a comprehensive listing of reasons for opposing an appointment, but the standoff has only deepened, underlying the intractable nature of differences between the Centre and the apex court.

While the national security clause attracted attention, other important reforms in the judicial appointments process remain equally stalemated. These include “search cum evaluation” committees and secretariats at the Su­preme Court and high courts to screen candidates—mostly serving advocates—prior to consideration by the collegium. Then Law Minister Kiren Rijiju, in January 2023, wrote to the Chief Justice of India (CJI) serving a reminder about the unfin­ished business, with copies of the proposed MoP having moved back and forth between the Supreme Court and the Centre since 2017. The government proposed inclusion of its representative in the committees at the level of the apex court and high courts. The opposition was quick to criticise the move as an erosion of the judiciary’s independence. Then Delhi Chief Minister Arvind Kejriwal said the suggestion was extremely dangerous as there should be no government interference in judicial ap­pointments. It is not clear if the Aam Aadmi Party (AAP) leader still feels the same way with the judiciary taking a dim view of alleged scams that dogged his government. Rijiju responded by saying revisions in the MoP flow from the apex court’s own ruling in the NJAC (National Judicial Appointments Commission) case. The matter remains deadlocked and consensus continues to elude the Supreme Court and the Centre.

The need for reform in judicial appointments would have re­mained bogged down in a quagmire of contending arguments but for a fire that broke out at the residence of Delhi High Court judge Yashwant Varma late on the night of March 14. On the Holi holiday when emergencies like drowning accidents in ponds, private pools and water bodies are more likely, the fire service responded to a blaze at Justice Varma’s residence at Tughlak Cres­cent. And as the fire in a store room on the bungalow premises was smothered, amid the smoke and soot a large number of half-burnt currency notes stood revealed. On March 15, Delhi Police Commissioner Sanjay Arora informed Delhi High Court Chief Justice Devendra Upadhyaya about the fire. The commissioner shared photographs and videos that prompted Justice Upadhyaya to speak to CJI Sanjiv Khanna without delay. Justice Upadhyaya, in his report to the CJI which has been made public, said that the Delhi Police chief in his submissions dated March 16 informed him that according to the guard posted at Justice Varma’s resi­dence, debris and other “partially burnt” articles were removed from the room where the fire broke out. “The enquiry conducted by me, prima facie, does not reveal the possibility of entry and access to the room by any person other than those residing in the bungalow, servants, garden­ers and CPWD personnel, if any. Accordingly, I am of the prima facie opinion that the entire matter warrants a deeper probe,” Justice Upadhyaya concluded.

The incident spilled into the public domain after a front-page report in The Times of India on March 21 detailed the detection of a huge pile of cash at Justice Varma’s official residence. The police report of the incident states that four-five half-burnt sacks were visible once the fire was doused and which were found to contain Indian currency. The room was usually locked and secu­rity personnel reported the removal of the suspected burnt mate­rial the day after the fire. Justice Varma was in residence when the registrar-cum-secretary to the Delhi chief justice visited the bungalow late on March 15 evening. The court official and Justice Varma inspected the site of the fire. “We all saw the walls were blacked out due to fire and some material was hanging from the roof and half burnt articles were lying there and burnt articles/ debris were lying on the floor,” he reported.

The account pertaining to removal of the material on March 15 seems to have weighed on CJI Khanna who directed Justice Upadhyaya to seek Justice Varma’s response to a specific set of ques­tions: “How does he account for the presence of money/cash in the room located on his premises? Explain the source of money/cash which was found in the said room? Who is the person who removed the burnt money/cash from the room on the morning of March 15?” Justice Varma was also advised not to dispose of his mobile phones or delete or modify any messages, data and conversations.

Reports of the recovery of cash set the capital’s grapevine on fire, with some activists and lawyers arguing that the judge may not have known about the cash and that he has a record of judicial competence. His significant orders include circumscribing the powers of the Directorate of Enforcement (ED) by holding that the agency cannot assume the existence of predicate offence in a money-laundering case. The order came in the case relating to pe­titions filed by Prakash Industries Limited and Prakash Thermal Power Limited against provisional attachment orders issued by ED. The ruling was hailed by some commentators while others disagreed with the separation of money-laundering cases from the commission of likely linked offences. He also headed a bench that dismissed Congress’ petitions against scrutiny of its income, concluding the Income Tax Department has substantial grounds for such an investigation.

In his response to the questions posed to him, Justice Varma has harped on the non-recovery of any burnt cash, saying the video shown to him is at variance with what he found at the site. Having alluded to a conspiracy against him in his initial meeting with Justice Upadhyaya, the judge in his written submission said neither he nor his family members had stored any cash in the room affected by the fire. “In fact, this gets further corroborated from there being no cash or currency which we saw when the site was restored to us after the fire personnel and the police had left the scene quite apart from we being not being apprised of any recovery or seizure made on the spot,” Justice Varma said. This will no doubt be an important part of the investigation of the three-judge committee of inquiry set up by the CJI. By his own account, Justice Varma returned to his residence on the evening of March 15 while the security guard reported burnt articles and debris were removed on the morning of that day. The role of Delhi Police in securing the premises after its personnel purportedly dis­covered the half-burnt sacks of currency will be probed too even as the mobile phones of cops present on site have been secured. Justice Varma emphasises the contents shown in the video are not recovered and none of his staff was informed of such a discovery. “What baffles me is the complete absence of any sacks of allegedly burnt currency which were ever recovered or seized,” he said. He further said the store room stands apart from the residence and was a dump. “I wonder who would countenance an allegation that currency would be kept in a storeroom in a corner of the house and which is freely accessible from amongst others the back wicker gate also,” he said.

Having denied knowledge of any cash in the storeroom, Justice Varma said the question of explaining the source of the money is invalid and denied the suggestion that he had a hand in the removal of currency from the premises of his official bungalow. Yet the photographs and video shots of the site of the fire that are part of the Delhi chief justice’s report have sparked a major con­troversy leading to the CJI consulting the collegium and senior judges of the Supreme Court. Justice Varma has been transferred to the Allahabad High Court and a decision has been taken not to allot him judicial work. The Allahabad bar is up in arms, protesting at the judge being sent to the court.

There is little doubt that the system of select­ing and evaluating judges requires strong doses of sunlight. The extraordinary case of Justice Karnan of the Calcutta High Court, who was sentenced to six months in prison by the Supreme Court in May 2017 for contempt after he “sentenced” then CJI and other apex court judges under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, was a particularly egregious case but should have been a wake-up call on judicial selections. But the zealousness with which the Supreme Court retains its supremacy over the appointment of judges even as it rails against the Centre for delays in clearing recommendations means an absence of any significant reform.

Vice President and Rajya Sabha Chairman Jagdeep Dhankhar took up the matter with leaders of political parties, stating that it was the right time to reiterate the NJAC Act which proposed a selection committee for judicial appointments in place of the in-house collegium. The NJAC proposed a committee comprising the CJI, two senior Supreme Court judges, the law minister, and two eminent experts. The experts were to be nominated by a com­mittee comprising the prime minister, the CJI, and leader of the Opposition. In a deeply divided polity where a major section of the Opposition and the government do not see eye to eye on any signifi­cant issue, differences on the need to prune the judiciary’s exclusive say on the appointment of judges are narrower and can even be bridged. But whether lack of communication and the animosity that marks relations between Congress and the Bharatiya Janata Party (BJP) will allow a fresh legislative push to restore key features of the NJAC proposal is unclear. The Justice Varma case has opened a can of worms and blown the lid off Lutyens’ Delhi speculation about the workings of the judiciary and the sanctity of the courts.

accountabilityappointmentscorruptionDelhi judgeIndian judiciaryJustice Yashwant VarmaSupreme Court of India