Senior Advocate Harish Salve on Monday questioned the handling of Justice Yashwant Varma episode involving discovery of burnt piles of cash at the judge's residence.
He asked why the law was not allowed to take its course and why no criminal case registered in connection with the matter.
Salve said the safeguards laid down in the Supreme Court’s Justice V Ramaswami judgment were meant to protect judges from frivolous complaints by litigants, and not to prevent action in a matter brought to the attention of the Chief Justice of India.
“When the Chief Justice of India was informed that such an incident has happened, and here is a video transcript of the institution, there was no question then of any action being taken to intimidate a judge. It was not a litigant. He should have said, let the law take its course,” Salve said.
He proceeded to ask what would have transpired if the same had happened at a minister’s residence.
“What would we have done if we had found cash burning in a minister’s house?” he asked.
Judicial independence does not mean shielding judges from accountability or scrutiny, Salve said.
“What imparts independence to the judiciary is not Constitutional provisions which put you beyond reach. It is not constitutional provisions by which you can shield a colleague who was caught with burning cash. Independence is caused and created by your own character,” he said.
He was speaking at the 6th Ram Jethmalani Memorial Lecture in Delhi.
Salve said the episode had exposed the judiciary’s failure to create an effective mechanism for enforcing accountability. He added that public confidence in the institution could be damaged even by a few cases that went wrong.
“And if we have found ourselves in this situation where we are all red-faced when somebody says, what happened to that incident? It is because we have refused to accept an institution which could enforce judicial accountability,” he said.
Salve also criticised the functioning of the justice system, pointing to the large number of pending cases and the shortage of judges. He said delays meant that justice was often not delivered at all, rather than merely not being seen to be done.
He called for a transparent system of judicial appointments and an institution capable of enforcing judicial accountability. He also questioned the present collegium system, saying judges appointing judges was not the norm elsewhere.
Salve further opined that the Supreme Court was taking on matters beyond its intended constitutional role. He said the Court could not be expected to supervise the day-to-day functioning of lower courts while also deciding important questions of law and constitutional significance.
He criticised court-monitored investigations, citing the 2G and Jaitley cases as examples of proceedings that ultimately ended in acquittals.
He also described the extent of judicial intervention in arbitration as a major obstacle to commercial dispute resolution and foreign investment.
On the basic structure doctrine, Salve said it was necessary to protect the Constitution but cautioned against allowing judges’ subjective views to determine the limits of legislative power. He also warned against social media commentary influencing judicial proceedings and said judges should speak through their judgments.
Salve concluded by calling for institutional “soul-searching” and a reset of the justice system, while expressing confidence that India could address the problems confronting its judiciary.