Senior Advocate Kapil Sibal arguing for Justice Yashwant Varma in the Supreme Court said the presence of cash in the outhouse of a sitting High Court judge does not mean there is "misconduct" or "proved incapacity”, the grounds required to remove a judge from his office under Article 124 of the Indian Constitution, LawLive reported.
A bench of Justices Dipankar Datta and AG Masih was hearing a writ petition filed by Justice Yashwant Varma over the unaccounted cash row incident.
Sibal, while referring to the letter written by former CJI Khanna to the President, as per the in-house procedure for recommending impeachment, said that it can't be a basis for impeachment.
According to LiveLaw, Sibal said that the procedure for the removal of a judge has to be as per the Judges (Enquiry) Act, and just because the cash is found in the judge's house, it does not prove either "misconduct" or "proved incapacity".
"If cash has been found in the outhouse, what is the behaviour of the judge to be held? There is no allegation of behaviour, forget misbehaviour," Sibal has been quoted as saying.
Justice Datta reportedly said that it could be a misbehaviour within the meaning of the Bangalore Principles of Judicial Conduct.
Sibal responded that it could be misbehaviour, but not to the extent of removing him from his office.
According to LiveLaw, Justice Datta said: "Neither have you disputed the fire incident, nor the recovery of cash."
Sibal said that the police or the in-house panel never found whom the cash belonged to, arguing that the CJI has no authority to write to the President recommending initiation of the impeachment proceedings, as it has to be moved by the members of Parliament.
“If Lok Sabha or Rajya Sabha members are satisfied that the conduct is such that it requires his removal, they will move a motion,” Sibal said.
Justice Datta reportedly said that the findings of the committee are not considered as evidence, so there should not be any grievance at this stage.
Sibal pointed out that the findings of the panel became a basis of the impeachment motion and asked: "The Chief Justice of India sent a communication recommending removal, what is Parliament to do than to accept it?"
Justice Datta reportedly clarified that, as per the Judges Enquiry Act, it has to be preceded by an inquiry of the three-judge committee. The matter was posted for July 30 (Wednesday).
The Supreme Court questioned Justice Yashwant Varma over his plea to invalidate an in-house inquiry panel report indicting him over the discovery of huge cache of burnt cash from his official residence during his tenure as a Delhi High Court judge.
"Why did you appear before the inquiry committee? Did you come to the court that the video be removed? Why did you wait for the inquiry to be completed and the report be released? Did you take a chance of a favourable order there first," a bench of Justices Dipankar Datta and A G Masih asked senior advocate Kapil Sibal, who was representing Justice Varma.
The top court further quizzed Justice Varma over the parties he had made in his plea and said he should have filed the in-house inquiry report with his plea. Sibal submitted there was a process under Article 124 (the Establishment and constitution of the Supreme Court), and a judge couldn't be a subject matter of public debate.
"The release of video on SC website, public furore, media accusations against judges are prohibited as per constitutional scheme," Sibal added. The top court asked Sibal to come with one page bullet points and correct the memo of parties.
Justice Varma has sought quashing of the May 8 recommendation by then chief justice of India Sanjiv Khanna, urging Parliament to initiate impeachment proceedings against him.
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