Don’t burn down the judiciary

Justice Varma case shouldn’t be used to erode judicial independence

Alok Tiwari

The alleged discovery of cash, reportedly worth over Rs 15 crore, by firefighters at the residence of Justice Yashwant Varma of Delhi High Court last month has left the judiciary singed. The entire institutional set up of judiciary has appeared slow, almost reluctant, to pursue the matter. Initially, Delhi fire service chief denied his men had come across any cash pile and Justice Varma was quietly shunted to Allahabad HC. The SC collegium at first called the transfer routine. The wheels began moving only when a video of the incident became public. Justice Varma denied that he or his family members had anything to do with the money and that it was found in a part of the property not used by the family. SC then confirmed the transfer and set up an enquiry panel. Hopefully it will unearth the facts, and the case will reach its logical end.

It better do so, because prima facie it looks bad. Like they say, more than the crime it is cover up that is bad. The initial appearance of judiciary trying to play down the matter has not served it well. That said, we need to be wary of the apparent eagerness of the executive to use the case to wrest control of judicial appointments. Literally within days of the matter becoming public, vice president and chairman of Rajya Sabha Jaideep Dhankhar convened a meeting with all political parties to mull over the way judges are appointed. He is reported to have said that things would have been different if National Judicial Appointments Commission (NJAC) had been in place.

NJAC was a mechanism to replace the present collegium system of appointment of SC and HC judges. Ever since SC took complete charge of the process through the collegium judgments in the 1990s, governments have been trying to get a say through various means. NJAC law was one such effort. It provided for a commission comprising chief justice of India and two other SC judges, union law minister and two eminent persons chosen by a committee of CJI, PM, and leader of opposition in Lok Sabha. SC scrapped the law as unconstitutional in view of its own collegium judgments and their subsequent validation.

Now, collegium system has its own problems. While it has ensured independence of the appointments process from the executive, it has led to charges of nepotism and in-breeding. That a big chunk of higher judiciary members appears to have come from a handful of families is a matter of concern. There is also talk of old boys’ network helping each other. The collegiums, both at SC as well as HCs level, have not been very forthcoming on the matters of transparency and accountability. Having excluded themselves from the purview of RTI Act, the public is not privy to the discussions in collegiums, nor the inputs that go into decision making process, nor how the complaints of judicial corruption or misconduct are treated.

These issues need to be addressed but the remedy is not to allow the executive a say in the matter of judicial appointments. The excitement of Dhankhar, ever the government megaphone on judicial matters, and that of entire government ecosystem over Justice Varma issue should in fact ring alarm bells. The case should be used to make members of judiciary more accountable, not to erode the independence of the institution itself, as government appears keen to be doing.

There is no reason to question the appointments process over emergence of one instance of alleged corruption. There have been numerous instances of cash being discovered in homes of senior bureaucrats. A cash count worth crores is going on as I write this at the home of a Bihar chief engineer linked to an IAS officer. Hundreds of crores were seized from a high-profile IAS couple in Madhya Pradesh some years ago. Yet, no one has suggested that their appointment process be changed because of this. The fact is no matter what the process, some black sheep will get in. What is more important is how they are dealt with once they are discovered. Also, whether proper mechanisms exist to minimise scope for corruption.

Please note that the executive is not calling for more transparency or accountability which would reform the system. Instead, it is calling for a say in appointment process which can have only one outcome— fill judiciary with more pliable judges. The executive simply does not have the good faith credentials to demand this. Look at what it did in the matter of appointment of Election Commissioners. It promptly ejected CJI from the panel to wrest control for itself. One hardly needs to talk about the quality of people chosen after that. Also look at how it has treated people accused of corruption in its own fold. Far from ensuring that they face justice, it has chosen to use their cases to harass them and then promptly drop the cases when they it got them on their knees.

Also, look at the state of agencies where it has complete control on all appointments, be it the police forces, CBI, ED, Income Tax department, or any other. Are they models of transparency, independence, and straight forward conduct? Far from it, they have been brazenly used towards political ends of the government of the day. So, it is a bit rich when an executive so tainted, so corrupt, and so inclined to subvert institutional independence asks for a say in judicial appointments to ensure corruption-free judiciary. It is just a ruse for greater power grab.

With all other pillars already compromised, judiciary is now the last bulwark against an overbearing and ruthless government bent upon usurping rights of citizens. Its independence has already begun to fray at the edges. We need reforms that will bolster that independence, not steps that would make it subservient to whims of an all-powerful executive.

This column appeared in Lokmat Times on Apr 2, 2025