The resignation of Justice Yashwant Varma has revived a question Indian law has not answered satisfactorily in the past 14 years. When a judge quits in the shadow of parliamentary removal, does the statutory inquiry against him fall with him? The question has arisen before. When Justice P.D. Dinakaran resigned in July 2011, the committee was wound up, despite its sittings after his resignation. Justice Soumitra Sen’s case went further. His inquiry committee returned adverse findings. The Rajya Sabha voted to remove him in August 2011. He resigned on the eve of the Lok Sabha vote, and the motion was dropped as infructuous. Justice Varma has now resigned as his committee nears conclusion. The first two episodes produced no reform. The third is still in progress.

Speaker Om Birla stands at the same fork. One road leads back to the choice Vice-President Hamid Ansari made in September 2011, when he wound up the committee examining charges against Justice P.D. Dinakaran. The other was set out that year by jurist G. Mohan Gopal, a member of that committee, in a letter to his two colleagues. The letter, later obtained under the RTI Act, was read and circulated. Its reasoning prevailed within the committee, which did not bring the inquiry to an end. Mr. Ansari did. That reasoning has not been rebutted. Its occasion has now recurred.

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Constitutional provisions

Mr. Gopal’s case begins with Article 124(5). The Constitution asks Parliament to enact a law regulating two exercises joined by “and”, not fused by it. The first is an investigation into whether the allegations against a judge are proved. The second is the presentation of an address seeking his removal. The first produces findings of fact and guilt. If these are established, the second results in a political decision on removal. One is owed to the truth; the other to Parliament’s conscience.

The Judges (Inquiry) Act, 1968 preserves the distinction. Sections 3 and 4 govern investigative work and depend on no decision of the House. The inquiry, in Mr. Gopal’s reading, is a public good in itself. It is owed to the citizenry, entitled to know whether serious charges against a high constitutional functionary stand or fall. It is owed to a judge who maintains his innocence, for whom only a formal clearance settles the record. It is owed to litigants whose matters may have been affected.

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The Supreme Court’s observations

The Supreme Court has endorsed the dichotomy in terms unchallenged for three decades. In Sub-Committee on Judicial Accountability vs. Union of India (1991), the Constitution Bench treated the investigative stage as judicial in character. The decision to remove was political and rested only with the two Houses. In Sarojini Ramaswami vs. Union of India (1992), the Court went further. Until the report reaches the Speaker, the process is statutory and open to judicial review.

If the inquiry is a statutory procedure and not a parliamentary one, its survival cannot depend on the respondent’s continued tenure. A criminal trial does not lapse because the accused takes premature retirement. A disciplinary proceeding does not collapse because the officer resigns. The logic of statutory inquiry holds.

The Act, read with the Judges (Inquiry) Rules, 1969 already anticipates a judge who does not participate. Rule 8, ‘Effect of non-appearance’, covers two situations: where notice under Rule 5 may have been served on the judge, or where it may have been published. In either case, if the judge does not appear, the committee may proceed in his absence. The rule-makers thus foresaw a respondent who might not cooperate. Their answer was to let the committee continue.

The opposite view, adopted by Mr. Ansari in 2011, carries a consequence that bears naming. If resignation extinguishes the inquiry, every judge facing statutory proceedings acquires a way to abort them. He can read the committee’s direction of travel and leave office before an adverse finding is written. Evidence already gathered becomes unusable. Benefits are preserved and reputation is not formally dented. The record is sealed.

Mr. Gopal called this an “absurd situation” that the Constitution could not have intended. A removal procedure the respondent can unilaterally terminate cannot, in any serious sense, be called one. The framers designed the two-thirds majority, the two-House requirement, and the investigative threshold to make arbitrary removal difficult. They cannot have meant those safeguards to double as an easy exit.

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Gaps in the 2011 precedent

Mr. Ansari gave no public reasoning for winding up the committee. The reasoning emerged only when the Rajya Sabha Secretariat replied to the RTI petition. The reply admitted that the 1968 Act provided no mechanism for dissolving a duly constituted committee. The decision, it said, had been taken “on the basis of law and precedents”. The precedents named were two American cases. Judge Samuel Kent of the Southern District of Texas had resigned on 30 June 2009. Judge George English of the Eastern District of Illinois had resigned on 4 November 1926. Neither bore the load. Kent had pleaded guilty to sexual misconduct charges before quitting. English was impeached by the House of Representatives in 1926 and resigned to avoid the Senate trial. Justice Dinakaran’s case resembled neither. No charge had been proved; no House had spoken. The law, on the Secretariat’s own reading, was silent.

The silence the Secretariat conceded is the one Mr. Gopal’s 2011 letter sought to fill. The first occasion to apply it closed before it could be tested. A second occasion is now before the Speaker. This is an opportunity he should not let go.

(V. Venkatesan is a journalist and legal researcher.)