Kapil Sibal: ‘Delhi Police did not do its job… What was the need for CJI to forward Justice Varma report to govt?'

Indian Express

5 hours ago

Independent Rajya Sabha MP and former Congress leader Kapil Sibal has been part of two impeachment processes against senior judges. In 1993, Sibal had defended then Supreme Court judge V Ramaswami during his impeachment motion hearing in Parliament, while in 2018, he was the one who read out the impeachment motion in the House against then Chief Justice of India Dipak Misra. As the government prepares to move on an impeachment motion against Justice Yashwant Varma, Sibal speaks at length on why he does not think the case against the High Court judge stands. Excerpts:
Before I answer that, 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…
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.
The Opposition should insist that impeachment proceedings be commenced against Justice Yadav before the case of Yashwant Varma is taken up.
The case is unlike any other in the past. Why do I say that? In the case of Justice Ramaswami, what were the allegations? That he ordered a certain carpet of a certain dimension, but what was found in the oval dining room was not consistent with the dimensions ordered. That was a matter of record, requiring no further evidence. He had allegedly installed many air conditioners, bought new furniture, enjoyed the benefit of two residences, in Chennai and Chandigarh. 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).
Take the case of Justice S K Gangele, who was accused of sexual harassment. 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 resigned before the vote on the impeachment. The charge against him related to misappropriation of funds when acting as a receiver, appointed by the Calcutta High Court. Again, the facts in relation to the funds were not in dispute.
In the case of Justice A K Ganguly, the Judges' Inquiry Committee found that charges of sexual harassment prima facie disclosed an act of unwelcome behaviour. But no action was taken since by then he had retired.
In none of the above cases was there a requirement for an investigation for facts to be established. But 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.
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…
The outhouse was beyond the boundary wall, separating the residence from the outhouse and staff quarters. The CRPF was located at the main gate, with no direct view of the outhouse. There was also a back gate where there was no 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. What did the fire service officers do after they reached the spot; what did they do after they extinguished the fire? They should have wondered how such a fire can be the result of a short circuit in a room with only one fan and a tubelight. Did they tell 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 asked to stay a distance from the outhouse, from where she could not see what was inside. Neither personnel of the Delhi Police nor members of the Fire Service Department told any member of the family and those present in the house that they discovered burnt cash. They never told the Judge's PS.
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 figure out which bank it came from. Much could have been inferred after that.
Why did the Delhi Police not do that? Why did they not cordon off the premises? Why did they not keep a vigil throughout? Why did they not lodge an FIR?… Why was all this not done?
They looked into what? They never looked into why the Delhi Police didn't do what they were supposed to do? The committee said that is not part of their remit… They didn't look into how members of the Fire Services Department conducted themselves… I have great regard for each of (the judges), but if they were asked to hold an inquiry, they should have looked into issues which (were) obvious.
Without a full-fledged inquiry, they concluded that as cash was allegedly found as reflected in the taped videos, and the judge could not explain who the cash belonged to and who put it there, therefore, the cash found 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 do you make somebody culpable for something that he says he is not aware of? There has to be evidence to show that the cash was moved on such and such day, at such and such time… Somebody will have to unload, placing it in the outhouse… Qua the quantum too the committee has rendered no finding.
On March 23, how did some television channels find some burnt notes on the road?… That is nine days after the event. I hope they have kept the notes because maybe there is a serial number which can provide some evidence of their origin.
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, when he was in Allahabad.
No. In-house is an in-house procedure for the Supreme Court. In fact, I wonder what was the constitutional necessity for (then) Chief Justice of India Sanjiv Khanna – an absolutely outstanding judge – to forward the report to the government.
Members of Parliament have to be agitated enough, independent of the in-house procedure, about the conduct of a judge of the higher judiciary and, if they are convinced… then alone a motion for his removal should 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 dealt with by a judges' inquiry committee constituted under the 1964 Act.
In this case, the MPs have no facts to go by other than 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.
Just look at the facts. On the 14th of March, a fire broke out around 11.30 pm. The daughter of the judge hears a blast and goes to the site along with the house staff. When the door is opened, the fire flares up, so they back off. Neither the CRPF nor anybody else comes to help… She is the one who calls the fire services people. The Delhi Police comes thereafter. The fire is doused. The police don't do a thing… They – neither the Fire Services Department nor the Delhi Police – inform the family that cash was found.
The judge returns on the 15th. He goes to meet his mother, comforts her. He doesn't go to that site at that point… The committee surprisingly presumes that (this is) because he knew that cash was there and that it belonged to him.
The judge is not aware that cash was found at the site till the 17th, when the Chief Justice of the Delhi High Court shows him the tape. He is, of course, shocked. Thereafter on the 20th of March, the Judge (Varma) is transferred. He doesn't protest against the transfer. Again, the inquiry report holds that he should have protested and, because he did not, it is evidence of guilt.
On March 25, the in-house procedure starts, which does not associate the judge in any substantial way. They examine the fire services people, the Delhi Police, CRPF… they issue him (Justice Varma) a show-cause notice. He files a reply on April 30, and requests that he be given a hearing, which was afforded to the judges concerned in all previous cases. That hearing is not given. What is said in his reply is not countered, and a report is given on the 4th of May, possibly because Chief Justice Khanna was to retire soon thereafter…
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 set up an investigating agency, an SIT, of chosen officers… The Delhi Police has already bungled and not done its job. 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 the control of the government…
There are other unanswered questions. Even the inquiry report says that the keys (of the outhouse) were accessible to anybody living on the premises… Incidentally, there was a liquor cabinet there which was locked. So you have to assume that the judge was more concerned about the liquor than the kind of cash that the mainstream media said was found there.
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 demoralise the judiciary, to take forward their agenda of an NJAC (National Judicial Appointments Commission) in which the final authority for appointing judges to the superior courts is the government…
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.