Why it is vital for Justice Verma to be given a fair hearing

With the announcement of an in-house inquiry against Justice Yashwant Varma to investigate allegations of unaccounted cash on his official premises, the Indian judiciary is set to face its most consequential test of its independence and integrity in the court of public opinion.

The tawdriness with which the facts of this case stumbled out in the public domain, along with the unprecedented disclosure of raw videographic evidence by the Supreme Court on its website, before its veracity could be tested through legal proceedings, raise questions of judicial propriety.

There is no rule of transparency that requires the disclosure of raw evidence when an investigation is pending. Even the Right to Information Act contains a substantial carveout against the disclosure of any evidence while an investigation is pending. In fact, over the years, the courts have decried the culture of investigating agencies leaking crucial evidence to journalists, since the same is inevitably followed by a media trial.

The Supreme Court has set a poor precedent for the future by sending a signal to the judges of the High Courts that any sundry allegation against them can be disclosed publicly before they have an opportunity to have the evidence forensically examined or an opportunity to cross-examine the persons making the allegations against them.

If judges staffing High Courts do not have confidence that the system will be fair to them when they face allegations they are going to think twice in the future while dealing with cases involving powerful litigants, be it governments or corporations. To that extent the probe against Justice Varma, is not just about him but the future of the decisional independence of all judges staffing the High Courts.

We need to look only so far as the district courts to understand how reckless disciplinary action against judges can impinge upon the decisional independence of judges. In the case of the district courts, it is High Courts that conduct the disciplinary inquiries. There is significant anecdotal evidence of High Courts being patently unfair while conducting such in-house inquiries into complaints received against judges of the district courts. Too often, rumours and innuendo become the basis of such disciplinary inquiries.

Take for example, the case of District Judge K Ganesan in Tamil Nadu who was accused of bribery after he granted bail to a person accused of murder and sexual assault of a minor. He granted bail only after the chargesheet had been filed and imposed stringent bail conditions. There was no recovery of the bribe allegedly paid to the judge and the main allegations levelled by the victim’s family were clearly based on hearsay, which is to say rumours and gossip in the village.

Yet the disciplinary inquiry by the Madras High Court resulted in a dismissal of Judge Ganesan in April 2017. In its judgment deciding Judge Ganesan’s petition challenging his dismissal from the judicial service, the Madras High Court concluded as follows on the question of evidence:

“…having direct evidence is very difficult, unless the persons who paid the money himself come forward to depose. That apart, a beneficiary out of such corrupt practice will not come forward to speak the truth and hence, the conclusion arrived at that there is allegation of bribe, is a true one.”

On the basis of this incredulous conclusion, Judge Ganesan’s petition was dismissed. His case is hardly a rarity. There have been cases where judges of the district courts have been accused of soliciting bribes through middlemen and dismissed from the judicial service despite the disciplinary inquiry being unable to identify the middleman, the nature of the bribe or produce any evidence of the link between the middleman and the judge.

In effect, these judges are being asked to defend themselves against charges that are not clear on the nature of the bribe, the person who has paid the bribe or the time at which they alleged received the bribe. It is logically impossible for a judge to rebut such allegations and her inability to do so is construed to be evidence of her guilt.

These precedents highlighted above in context of the district judiciary should give us cause for concern regarding Justice Varma’s inquiry. Unlike inquiries against the district judges that follow the procedure prescribed under the now-repealed Public Servants (Inquiries) Act, 1850 the Supreme Court, prompted by the C Ravichandran Iyer case, adopted an in-house procedure in 1999 formulated by a committee of judges to inquire into allegations against judges of the High Court.

The in-house procedure is curiously silent on the procedural and evidentiary rights of the accused judge. It merely states that “the Committee shall devise its own procedure consistent with the principles of natural justice”, while also clarifying that there will be no examination and cross-examination of witnesses and representation by a lawyer.

When the allegations of corruption or unaccounted currency are based entirely on oral testimony, the only viable defence is cross-examination. Once the defence is stripped of the right to cross-examine, there is no way to rebut allegation based primarily on oral testimony, as is the present case.

If depriving judges of a right to cross-examination was not bad enough, the in-house procedure is silent also on how the allegations will be investigated. Will government agencies be involved and will they get access to the judge’s personal records? Will the committee have the power to compel disclosure of evidence or order the seizure of evidence. If so, under which law will they exercise these powers? These are important considerations when the target of the inquiry is a judge of the High Court.

Another concern, we identified based on our study of the conduct of disciplinary inquiries, is the issue of evidentiary standards. In the case of disciplinary inquiries against district judges conducted by High Courts, we have routinely seen the admission of completely unreliable hearsay statements, which is to say second-hand accounts of persons who have no personal knowledge of the statements of fact that they are making.

On similar lines, we noticed that some disciplinary inquiries conducted by High Courts into allegations of corruption against district judges have followed the evidentiary standard of “preponderance of probabilities”. This is a standard generally followed in civil cases but which when combined with the admission of hearsay evidence, leads to patently unfair conclusions against judges of the district judiciary.

Will Justice Varma be subject to similarly unfair evidentiary standards?

While allegations of judicial corruption should indeed be dealt with sternly, a rickety inquiry based on unfair procedural and evidentiary norms will have a demoralising effect on other judges of the High Courts who will be now be fearful of having their name tarnished based on vague allegations. That fear will translate into judges of the higher judiciary demonstrating an increased reluctance to adjudicate cases involving powerful interests in government or the corporate world.

Therefore, the stakes of this in-house inquiry are not limited to Justice Varma but extend to the decisional independence of all the judges of High Courts. It is important for the Supreme Court to set a right precedent. Clarity on Justice Varma’s procedural and evidentiary rights are a good place to start.

The writers are co-authors of Tareekh Pe Justice: Reforms for India’s District Courts published by Simon & Schuster (2022).

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