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Can a Sitting Judge Be Booked?
The Veeraswami case: When can a sitting judge face an FIR?
Context: Vice President Jagdeep Dhankhar stirred a major constitutional debate this week by questioning the legality of an in-house inquiry initiated by the Supreme Court into unaccounted cash allegedly found at the residence of Justice Yashwant Varma in March 2024.
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- He stated that the inquiry “has no constitutional premise or legal sanctity” and demanded that a First Information Report (FIR) be registered against the judge.
- Dhankhar also called for a review of the landmark 1991 Supreme Court judgment in the K Veeraswami case, claiming it has created a “scaffolding of impunity” that shields judges from criminal accountability.
Case Against Justice Yashwant Varma
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- Justice Yashwant Varma, who was serving as a judge of the Delhi High Court when the unaccounted cash was found, has since been transferred to the Allahabad High Court.
- An in-house inquiry by the Supreme Court indicted him on May 8, 2024.
- However, on May 15, the Supreme Court dismissed a public interest petition seeking a criminal investigation and FIR against him.
- The court cited the completion of the in-house inquiry and confirmed that the findings had already been forwarded to President Droupadi Murmu and Prime Minister Narendra Modi.
- This decision reignited questions over judicial accountability, the protection offered to judges, and whether criminal proceedings can be initiated against a sitting judge.
Can an FIR Be Filed Against a Sitting High Court Judge?
- The answer lies in the landmark 1991 K Veeraswami judgment, which continues to be the legal foundation governing criminal proceedings against members of the higher judiciary.
- The Indian Constitution offers strong protection for judicial independence, which includes immunity from criminal proceedings unless strict conditions are met.
- Article 124 of the Constitution provides that judges can only be removed by impeachment, a politically driven process requiring support from Parliament.
- Because no impeachment attempt has ever succeeded, the Supreme Court in earlier years developed the in-house inquiry mechanism, where the Chief Justice of India (CJI) appoints a panel of judges to look into complaints against other judges.
- This internal process, however, cannot initiate criminal prosecution — only serve as a preliminary signal to the executive for potential impeachment.
What Did the K Veeraswami Judgment Say?
- The Veeraswami case involved Justice K Veeraswami, who served as Chief Justice of the Madras High Court from 1969 to 1976.
- Just before his retirement, allegations of corruption surfaced, and the Central Bureau of Investigation (CBI) registered an FIR claiming he possessed assets far exceeding his known income.
- Justice Veeraswami moved the courts to quash the FIR, arguing that such action against a sitting judge violated constitutional protections.
- After a full-bench ruling by the Madras High Court, the case reached the Supreme Court. In a 3-2 majority decision in 1991, the apex court ruled that:
- Judges of the High Courts and the Supreme Court are “public servants” under the Prevention of Corruption Act, 1947.
- However, sanction to prosecute such judges must come from the Chief Justice of India, not from the executive branch.
- This ruling was pivotal in maintaining judicial independence while allowing for limited criminal accountability.
- It shielded judges from executive overreach by making the CJI the sole authority competent to permit prosecution.
Precedents and Sanction for Prosecution
- In 2019, CJI Ranjan Gogoi made history by granting the CBI permission to register an FIR against Justice S N Shukla of the Allahabad High Court over alleged corruption related to MBBS admissions in a private medical college.
- Earlier, then CJI Dipak Misra had recommended impeachment against Justice Shukla, but the government did not act.
- This case marked the first time in Indian legal history that a sitting judge was allowed to be investigated under criminal law with the CJI’s sanction.
Why Judicial Accountability Remains Complex
- The Justice Varma case and Vice President Dhankhar’s comments spotlight the ongoing tension between judicial independence and public demands for transparency and accountability.
- While in-house inquiries offer an internal mechanism for redress, critics argue they lack transparency and enforceability.
- On the other hand, criminal prosecution of judges risks politicisation and retaliation from disgruntled litigants or government actors.
- Vice President Dhankhar’s call to revisit the Veeraswami ruling aims to re-examine this delicate balance — possibly introducing reforms to make the judiciary more accountable without compromising its independence.
As calls for judicial accountability grow louder, India may be approaching a constitutional crossroads. Reforming how complaints against judges are handled, without undermining the integrity of the judiciary, is likely to remain a contentious issue in the months ahead.
