Kapil Sibal slammed the government for protecting Justice Yadav while targeting Justice Varma, saying, “The government clearly wants to save the judge.” He questioned why the same rules weren’t applied in both cases.
Senior Advocate and Rajya Sabha MP Kapil Sibal, who has previously been involved in two judicial impeachment proceedings, recently shared his strong opinion with The Indian Express on the current case related to Justice Yashwant Varma of the Delhi High Court.
He raised concerns regarding the absence of solid evidence, the handling of the investigation, and the government’s involvement. He made it clear that he does not think the impeachment case against Justice Varma rests on strong legal foundations.
Before addressing Justice Varma’s situation, Sibal criticized the prolonged delay in another impeachment case.
He questioned,
“Why has the Chairman of the Rajya Sabha not moved on an impeachment motion signed by 55 members of Parliament (in the case of Allahabad High Court Justice Shekhar Yadav) for six months? Does it take that long to verify signatures, especially when the case against Justice Yadav is open-and-shut? The communal (speech) of the judge is evident. The speech has not been denied by the judge…”
He further accused,
“The government clearly wants to save the judge… Also, why did the Rajya Sabha Chairman write to the Chief Justice not to proceed with the in-house inquiry (against Justice Yadav) based on information available in the public domain? The same logic should have been used by the Chairman to stop the in-house inquiry against Justice Varma.”
He asserted,
“The Opposition should insist that impeachment proceedings be commenced against Justice Yadav before the case of Yashwant Varma is taken up.”
While explaining why he believes the case against Justice Varma is distinct from previous impeachment cases, Sibal stated,
“The case is unlike any other in the past. Why do I say that?”
He then provided examples from earlier impeachment matters to support his argument.
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He explained that the impeachment of Justice V. Ramaswami was based on documented evidence, such as the inaccurate dimensions of a carpet and excessive expenditures on air conditioning and furniture.
“Facts relating to all this were matters of record…. Whether such financial profligacy amounted to proven misconduct or not was the only question to be answered in the course of the debate on the motion (in Parliament).”
Referring to Justice S.K. Gangele, he stated,
“That required an inquiry, not an investigation. The inquiry under the Judges Inquiry Act, 1964, exonerated him. So the motion failed.”
In the case of Justice Soumitra Sen, he noted that the judge had resigned prior to the vote. The allegations of fund misappropriation were based on undisputed facts. Similarly, in Justice A.K. Ganguly’s case, the allegations of sexual harassment were substantiated by the Judges’ Inquiry Committee, which found that “charges of sexual harassment prima facie disclosed an act of unwelcome behaviour,” but no action was taken since the judge had retired.
Sibal asserted that none of these cases required an investigation to establish the facts.
However, he added,
“In this (Justice Varma’s) case, you need an investigation, because there are no established facts, other than that there are videos showing burnt cash in the outhouse of the residence allotted to the judge.”
He questioned the credibility of media reports, stating,
“First, there is no evidence to discover how much cash was there. Mainstream media alleges, without any evidence, that there were four or six sacks… Who brought these and placed them there… no evidence. No mention of this in the evidence collected by the in-house (Court) committee. Mainstream media alleges, again without any evidence, that a sum of Rs 15 crore was there… Who counted them, only the media knows. No such evidence before the committee…”
He also highlighted that the outhouse was not directly visible to the CRPF stationed at the main gate and that there was a back gate without any security.
“So who put the cash in the outhouse? How much cash was there? Whether it was genuine or fake… all that has to be investigated.”
He raised additional questions regarding the fire that occurred in the outhouse.
“What did the fire service officers do after they arrived on the scene? What actions did they take after extinguishing the fire? They should have questioned how such a fire could result from a short circuit in a room with only one fan and a tubelight. Did they inform the family members about the presence of cash? In fact, there is no evidence that they did… Was (Justice Varma’s) daughter close enough to see what was in the outhouse? She was instructed to keep her distance, from where she could not see inside. Neither the Delhi Police nor the Fire Service personnel informed any family member or those present in the house about the discovery of burnt cash. They never communicated this to the Judge’s PS.”
He criticized the police for not adhering to standard procedures,
“Why did the Delhi Police not seize the alleged half-burnt cash? The tape showed that remnants of cash were present. You needed only one note with a serial number to trace its origin. Much could have been inferred from that.”
He further questioned,
“Why didn’t the Delhi Police do that? Why didn’t they cordon off the area? Why didn’t they maintain a watch throughout? Why was no FIR lodged?… Why was all this not done?”
Regarding the internal inquiry, he remarked,
“They looked into what? They never examined why the Delhi Police didn’t fulfill their responsibilities. The committee stated that this was not part of their remit… They didn’t investigate how the Fire Services Department conducted themselves… I have great regard for each of (the judges), but if they were tasked with an inquiry, they should have addressed the obvious issues.”
He indicated that the committee reached conclusions without conducting a thorough investigation,
“Without a full-fledged inquiry, they concluded that, since cash was allegedly found as seen in the taped videos, and the judge could not explain its ownership or how it got there, then the cash must have been placed there with his tacit/explicit knowledge. They do not conclude that the cash belonged to the judge… In the absence of any investigation, how can someone be held accountable for something they claim to be unaware of?”
“There has to be evidence showing that the cash was moved on a specific day and time… Someone had to unload and place it in the outhouse… As for the quantity, the committee did not provide any findings.”
He also expressed skepticism about some TV channels discovering burnt notes days later,
“On March 23, how did some television channels find burnt notes on the road?… That is nine days after the event. I hope they have preserved the notes because maybe there is a serial number that could provide evidence of their origin.”
Sibal strongly defended the integrity of Justice Varma,
“I say with some sense of responsibility that he (Justice Varma) was perhaps one of the finest judges of this court (the Delhi High Court). There was never a whiff of any wrongdoing here, or for that matter, during his time in Allahabad.”
When asked if the in-house inquiry was sufficient to justify impeachment, Sibal responded,
“No. In-house procedures are intended for the Supreme Court. In fact, I wonder what the constitutional necessity was for (then) Chief Justice of India Sanjiv Khanna – an absolutely outstanding judge – to forward the report to the government.”
Regarding whether the Chief Justice should have sent the report to the President, Sibal said,
“Members of Parliament must be sufficiently agitated, independent of the in-house procedure, about the conduct of a judge of the higher judiciary, and only if they are convinced… should a motion for removal be moved. We did this in the case of Justice Misra (facing allegations of misbehaviour and misuse of authority). We Members of Parliament based our findings on facts… Such a motion should then be addressed by a judges’ inquiry committee constituted under the 1964 Act.”
He added,
“In this case, the MPs have no facts to rely on other than the alleged burnt cash, without knowing its origins. You are using an in-house procedure to supplant an inquiry without a motion, and you want to remove the judge.”
He detailed the events of the day of the fire,
“On March 14, a fire broke out around 11:30 PM. The judge’s daughter heard a blast and went to the site with the house staff. When they opened the door, the fire flared up, causing them to retreat. Neither the CRPF nor anyone else came to assist… She was the one who called the fire services. The Delhi Police arrived afterward. The fire was extinguished, but the police did nothing… Neither the Fire Services Department nor the Delhi Police informed the family that cash had been discovered.”
Sibal continued,
“The judge returned on the 15th. He went to comfort his mother and did not visit the site at that time… The committee surprisingly assumes that (this is) because he knew cash was there and that it belonged to him.”
“The judge was not aware that cash had been found until the 17th, when the Chief Justice of the Delhi High Court showed him the tape. He was, of course, shocked. Then, on March 20, Judge Varma was transferred. He did not protest the transfer. Yet, the inquiry report asserts that he should have protested, and because he did not, it is considered evidence of guilt.”
“On March 25, the in-house procedure began, which did not involve the judge in any substantial way. They examined the fire services personnel, the Delhi Police, CRPF… they issued him (Justice Varma) a show-cause notice. He submitted a reply on April 30, requesting a hearing, which was afforded to judges in all previous cases. That hearing was not given. What he stated in his reply was not countered, and a report was issued on May 4, possibly because Chief Justice Khanna was set to retire soon thereafter…”
When asked if a future impeachment committee would conduct a thorough inquiry, Sibal replied,
“They may inquire if they find the evidence sufficiently compelling. But again, this case requires an investigation. In my view, the Supreme Court itself, because he (Justice Varma) is a judge of the High Court, should direct the Secretary General to lodge an FIR and establish an investigating agency, an SIT, composed of selected officers… The Delhi Police has already mishandled the situation and failed in their duties. Clearly, from statements made by the Law Minister and others, they wish to remove the judge even in the absence of any evidence of wrongdoing… The judge will have no confidence in any police investigation under government control…”
He added,
“There are other unanswered questions. Even the inquiry report states that the keys (to the outhouse) were accessible to anyone living on the premises… Interestingly, there was a locked liquor cabinet there. So you have to assume that the judge was more concerned about the liquor than the kind of cash that the mainstream media claimed was found there.”
When asked if he would represent Justice Varma, Sibal replied,
“We are not at that stage at all, and the judge has not asked me to appear for him… The issues raised by me are questions that any thinking person must ask before destroying somebody’s career and reputation. The government is using this flimsy information to demoralize the judiciary, to advance their agenda of an NJAC (National Judicial Appointments Commission) in which the final authority for appointing judges to the superior courts is the government…”
When it was noted that the former CJI had forwarded the report, he concluded,
“That is alright. He may have forwarded it, but he didn’t say that the judge is guilty. The committee report holds him liable based on presumptions, which are not recognized in civilized jurisprudence. Under which principle of criminal law can you find someone guilty based on a presumption?”
Finally, Sibal stated,
“The whole idea seems to be to get the nation to believe that the judiciary is corrupt and therefore we need to change the system… I hope and I trust that the Opposition will not let it happen.”