Justice Varma case shows why judiciary needs an accountability commission

The alleged recovery of burnt stacks of cash from the home of Justice Yashwant Varma of the Delhi high court has reignited an old flame. The National Judicial Appointments Commission had flickered briefly in 2015 as a possible antidote to the culture of opacity that pervades judicial functioning. That flicker was swiftly extinguished by the Supreme Court. The Court found the prospect of ‘outsiders’—representatives of the govt and civil society—appointing and transferring judges too combustible. It went back to the old and discredited collegium method of appointment. Now, vice president Jagdeep Dhankhar has seized the moment and suggested that had the NJAC been present “things would have been different”.

He is right in one way. Had the NJAC been operational, the collegium of senior-most judges of the SC would not have been the one deciding whether to re-transfer Varma back to the Allahabad high court or not. By the same token, Varma might not even have been transferred out of Allahabad. It was that transfer that gave him a significant seniority bump and brought him into the national spotlight.

If the first collegium decision was curious, the present one was reactionary. Both were the product of the kind of groupthink that one is likely to get when five like-minded people decide an issue. Though the SC has denied that his current transfer proposal has anything to do with the alleged cash recovery incident, that clarification has convinced very few.

Culturally too, the NJAC held out the promise of ending the deeply held perception of nepotism and opacity that had shrouded the collegium for the better part of three decades. Its composition was to have included not just the Chief Justice of India and two senior judges but also two eminent persons, one of whom would have to belong to a vulnerable or minority group, and the law minister. It is likely that such a body would have had the benefit of a multiplicity of viewpoints.

Whether it would actually have made a difference or not, one can only speculate. But the collegium, which continues today well past its sell-by date, was already discredited in 2014. Notably, it had recommended PD Dinakaran, a tainted judge, who was serving as chief justice of the Karnataka high court, for appointment to the Supreme Court. It then inexplicably transferred him to Sikkim when its decision appeared unsustainable.

Many more examples are available, as are the examples of govt interference in appointments before the collegium came into existence. But the point is not whether one system is better than another. The collegium is emblematic of the closeness of the judiciary that befuddles the public. It needs to be replaced by a commission along the lines of the NJAC.

Conceptually, however, the NJAC had very little to do with judicial accountability once a judge was already in office. Such a body would really not have had any role either in conducting the inquiry against Varma or recommending action against him. That task was sought to be accomplished by the Oversight Committee set up by the Judicial Standards and Accountability Bill, piloted by UPA-2.
Were such a body in existence, any inquiry would have led to its logical outcome—if the case was one of serious misbehaviour, then impeachment proceedings would have commenced; if it was less than serious but a case of misbehaviour nonetheless, advisories and warnings could have been issued to the judge.

More importantly, it would not have led to the apprehension that if a judge is caught with stacks of cash, he can get away, whereas other public servants cannot. Justice would not only have been done but be seen to have been done. Such a commission would dispel any doubts in the public mind that the judiciary always seeks to protect its own. Such an accountability commission for the judiciary is the need of the hour.

In all this, however, there is a cruel irony. Varma is reputed to be a fine judge. His judgments are well-reasoned and his record good. This allegation has already damaged his reputation, perhaps irreversibly.

Any accountability process, not just for judges, but for all suspected of wrongdoing must give them a fair hearing and reach its conclusion swiftly. If the judge is found guilty, nothing short of criminal proceedings should ensue. But if the judge is found innocent, then the investigation must also get to the bottom of why this canard spread like wildfire. Using this case to drive
systemic reform is opportune. But prematurely burning someone at the stake is unfair.

Let Justice Varma not become the Joan of Arc for the Indian judiciary.