Calling himself a “trenchant critic” of the Collegium system, Senior Advocate Harish Salve has said it is “not equipped” to deal with cases like the alleged recovery of huge piles of cash from Delhi High Court judge Yashwant Varma. In light of new information, Mr Salve insisted, the judge’s transfer to the Allahabad High Court must be put on hold.
Speaking exclusively to NDTV on Friday, Mr Salve pointed out that the Delhi fire chief has said no recovery was made by firefighters from the judge’s bungalow in the national capital, giving rise to an “odd and murky” situation.
After reports emerged on Friday of Rs 15 crore being recovered from Justice Verma’s house in Lutyens’ Delhi following a fire call on March 14, which was Holi, Delhi Fire Services Chief Atul Garg said no cash was found by firefighters at the residence.
The Supreme Court also issued a press statement saying that the transfer of Mr Varma was not related to the in-house inquiry being conducted by the Delhi High Court. The Chief Justice of the Delhi High Court, it said, will submit his report on Friday.
To a question on what the recovery indicates about the state of judicial accountability in India, Mr Salve said, “I was proceeding on the assumption that there was a recovery. I believe the Delhi fire chief has said there was no recovery. It is now a very odd situation in which the Supreme Court Collegium has issued transfer orders for the judge and an inquiry has been ordered and, on the other hand, it is being said there is no recovery. If there is no recovery, what is the inquiry about?”
“I don’t know what’s going on, because if such a serious allegation is being falsely made, it raises very serious questions. And if the allegation is true, then again it raises very serious questions,” the former solicitor general of India asserted.
The situation, which was “devastating” is now becoming controversial and concerning, the senior lawyer said.
The Supreme Court, Mr Salve said, should immediately order an inquiry into whether there was a recovery, and if there wasn’t, into who the people are that have “manufactured” these allegations.
“In my personal view, in either event, his transfer should now be put on hold. Because if he (Justice Varma) was being transferred not because of this but because of other administrative reasons, the two issues have got joined at the hip. If the allegations against him are false, it is very unfair to him to transfer him and if they are true, then a transfer is too little,” he said.
‘Unequal To The Task’
The lawyer said the allegations against the judge have reinforced his conviction that there is a need for a system that can deal with these kinds of cases.
“The Collegium in-house system is unequal to the task. Look at what has happened today. The Collegium chose today to announce the judge’s transfer, the same day on which you get a newspaper report saying that cash has been found at the judge’s house. If the newspapers had it today and there was some conversation of this kind, I find it hard to believe that the judges had not heard that such a thing is happening. If they had, their first reaction in the morning should have been entirely different,” Mr Salve said.
“The newspaper said some members of the Collegium were unhappy with the transfer and thought something more was required. This is the problem with having an in-house opaque system… We need a proper investigation and I am not saying this needs to be investigated outside the control of the Supreme Court, but the Supreme Court should seriously consider having a panel of a judge and maybe one or two eminent outsiders to conduct this inquiry. Because if the fire chief is right and these are false allegations, we don’t want the people to feel the judges have helped one of their own. There should be credibility to his exoneration,” he added.
Judicial Appointments
To a question on whether there was a need for reforms to ensure merit-based judicial appointments, Mr Salve said he has been a trenchant critic of the Collegium system all along.
The lawyer said the Collegium system was a short-term fix to take away the “absolute power” that the government had begun exercising. The earlier system got dented, he pointed out, when the executive said in 1991 that it only needed to consult the judiciary and did not need its permission for appointing judges.
Mr Salve said the Supreme Court’s judgment against the National Judicial Appointments Commission (NJAC) was deeply flawed.
“And the reason is so apparently wrong. The Supreme Court said that judicial independence cannot be achieved unless the appointment is by a committee in which the judges are in the majority. Why, independent people don’t have a stake in the system? Indian civil society is 1.4 billion strong. You can’t find seven good, honest people who will select a judge? What about the rest of the world? Judges never appoint judges. So, the first premise is flawed,” he asserted.
The lawyer also said the second premise that the law minister cannot be on the committee because the government is a litigant is wrong.
“The Government of India, a co-equal branch, is a vital stakeholder. He cannot be the deciding authority but he must have a say in judicial appointments. We need the NJAC. If some minor tweaks were needed, that could have been done, but we threw the baby out with the bathwater,” he said.
‘Judges Not Above The Law’
The former solicitor general also said there is no such thing as judicial immunity. The convention that the police cannot register a complaint against a judge in relation to his work is a necessary one, he said, adding the caveat that “this doesn’t mean judges are above the law or beyond the law”.
“This impression created in public minds has to be effaced as soon as possible. Yes, the judges need protection because of the sensitive nature of the jobs they do. But the ministers of the Union cabinet or state cabinet do no less a sensitive job. Senior civil servants do no less a sensitive job. And, beyond a point, there is no question of immunity,” he said.
Making an impassioned plea, Mr Salve said, “The problem is the public perception of the honesty and integrity of the judiciary and the competence of the judiciary is being seriously eroded. And I think it’s time the 500 people we send to Parliament, doesn’t matter which political party, put their heads together and save democracy. Because if people lose faith in the justice delivery system… if the report is true it will shake public faith and if it is false it will shake public faith. We need a system that can manage these situations effectively without causing the kind of damage to the judiciary that we have seen in the past 12 hours.”
