The inquiry against Justice Yashwant Varma has not merely invited public scrutiny, it has forced open foundational questions about the architecture of our Constitution, the limits of executive power and the sanctity of due process.
While it is couched within the Supreme Court’s 1999 in-house mechanism, it is imperative that it be evaluated against the rigour demanded by modern Indian criminal law as codified under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Bharatiya Sakshya Adhiniyam, 2023 (BSA) and the broader framework under Articles 14, 21 and 124(4) of the Constitution.
First, from a purely criminal law standpoint, the process followed in the inquiry falls far short of what would be admissible or even investigatively permissible in a court of law. The committee has relied upon photographs of charred currency and oral statements from fire personnel. However, there was no recovery in the manner prescribed under Section 185 of the BNSS, which governs the formalities of seizure. The panchnama, a critical evidentiary document for corroborating recovery and seizure, is conspicuously absent. No seizure memo was prepared, no police procedure followed and the scene was neither secured nor preserved according to criminal jurisprudence.
Under Section 106 of the BSA, the burden of proof shifts only when foundational facts are first established by the prosecution, which was not done in this case. The inquiry committee’s assumptions based on visual impressions and witness recollections cannot override the statutory preconditions for establishing liability in criminal law.
Justice Varma, in his reply to the inquiry committee, emphatically denied any awareness of or involvement with the burnt currency discovered in the storeroom of his official residence. He explained that the storeroom was a communal facility, unlocked and accessible to staff, domestic help and PWD personnel. and not part of his private living quarters. He further contended that the inquiry panel’s imposition of a reverse burden of proof effectively presumed guilt in the absence of foundational evidence, contravening BSA and the time-honoured principle that burden lies with the prosecution. Justice Varma’s documented absence at the time of the fire, lack of forensic recovery of currency from his possession and the failure of the committee to produce a chain of custody or material evidence that meets the threshold of relevance and admissibility render the findings legally infirm.
Even if one were to momentarily suspend disbelief and accept the physical existence of currency notes at the premises, criminal jurisprudence requires proof of possession that is both conscious and exclusive. The Supreme Court has repeatedly held, including in Mohan Lal v. State of Punjab (2018) and State of Punjab v. Baldev Singh (1999), that in order to impute liability, especially where penal consequences follow, strict compliance with procedural safeguards is not optional but mandatory. The committee’s findings ignore this jurisprudence. The judge's absence, the detached nature of the structure in which the cash was discovered and the unrestricted access to the storeroom by third parties create sufficient intervening variables to defeat the doctrine of exclusive control or dominion.
The evidence relied upon also fails under the BSA’s evidentiary matrix. Section 61 of the BSA mandates that electronic records be accompanied by a certificate under Section 63(4), a compliance totally absent in the committee’s findings. In Anvar PV v. PK Basheer (2014), the Supreme Court clarified that electronic evidence without such certification is inadmissible. Even documentary and photographic evidence must conform to standards of relevance, reliability and legal admissibility. The so-called “proof” marshalled in this matter fails on each count.
To clarify, the in-house procedure is not a judicial proceeding under the BNSS, nor are its findings subject to strict application of the BSA. It is an administrative mechanism for internal institutional housekeeping. However, this distinction cannot be stretched to shield procedural laxity, especially when such an inquiry forms the bedrock of potential constitutional consequences, namely, the initiation of proceedings under Article 124(4) for the removal of a sitting High Court judge. As held in AK Kraipak v. Union of India (1969), when administrative actions have civil or reputational consequences, the principles of natural justice and fair play become non-negotiable. In other words, the absence of strict statutory application does not mean an absence of procedural integrity. What may not be mandatory becomes morally and constitutionally indispensable.
Constitutionally, the invocation of Article 124(4) to suggest impeachment proceedings against a judge based on such material reflects a profound misunderstanding of the constitutional safeguards envisioned by our framers. Article 124(4), read with the Judges (Inquiry) Act, 1968, requires that a motion for removal be introduced in Parliament by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha. Once admitted by the Speaker or Chairman, a committee comprising a Supreme Court judge, a Chief Justice of a High Court and a jurist is constituted to examine the charges. Only upon a finding of proven misbehaviour or incapacity by this committee, and the subsequent passing of a motion by two-thirds of the members present and voting in both Houses of Parliament, can a judge be removed.
This threshold was set deliberately high, recognising that judicial independence is not a shield for misconduct but a necessary protection against executive vendetta. In Sub-Committee on Judicial Accountability v. Union of India (1991), the Supreme Court observed that judicial removal is an exceptional process and must not be triggered by vague accusations or speculative assertions. In SP Gupta v. Union of India (1981), the Court reaffirmed that insulation of the judiciary from political pressure is not a matter of privilege, but of constitutional design.
The juxtaposition of this haste in targeting Justice Varma against the inaction in equally or more serious cases like that of Justice Shekhar Yadav betrays a selective indignation, one that is politically convenient rather than constitutionally grounded. This imbalance in application violates the equality clause under Article 14 and demonstrates a textbook case of colourable exercise of power.
Internationally, judicial accountability is maintained through processes that respect the office while ensuring due process. The Canadian Judicial Council requires a demonstrable incapacity to perform judicial functions before recommending removal. The United Kingdom’s Judicial Conduct Investigations Office adheres to strict timelines, transparency and the right to representation. Japan’s Diet removes judges only after a detailed and transparent process insulated from public sentiment or executive pressure.
Finally, the growing use of non-transparent inquiries and leaks to the media, followed by swift executive action, indicates a new pattern of undermining judicial independence. As empirical research recently confirmed, such patterns often precede the democratic backsliding of institutions. The judiciary, the last bastion of constitutional governance, must be defended not because judges are beyond reproach, but because the method of accountability must itself be constitutionally sanctioned.
The inquiry against Justice Yashwant Varma is deficient in law, infirm in procedure and unconstitutional in spirit. It represents not an act of discipline, but a precedent of destabilisation. If permitted to stand, it will lower the evidentiary threshold for impeachment and compromise the very edifice of judicial independence that our constitutional structure upholds.
Tushar Arora is an advocate practicing before the Supreme Court of India.
Views are personal.