The Loophole in Judicial Accountability: The Yashwant Varma Case

Source: The Hindu

Introduction 

Parliament is set to take up, in the coming Monsoon Session, the report of the committee appointed by the Speaker of the Lok Sabha under the Judges (Inquiry) Act, 1968, to investigate charges of misbehaviour against former judge of the Allahabad and Delhi High Courts, Yashwant Varma, who has since resigned. 

• The allegations against him arise from the discovery, in March 2025, of partially burnt currency notes in an outhouse at his official residence. 
• Mystery surrounds his current status and the future course of the pending proceedings in Parliament.

Background 

• Three months after his resignation, Mr. Varma continues to be listed by the Allahabad High Court and by the Department of Justice of the Union government as a sitting judge, giving rise to misgivings about whether his resignation has taken effect or remains subject to acceptance by the President. 
• It has been reported that following Mr. Varma's resignation on April 9, 2026, his status at the Bar was changed to "active" on resumption of practice. Some of his dues and benefits as a sitting judge have reportedly been stopped since the resignation.

The Constitutional Power to Resign at Will 

• The Constitution vests 13 constitutional functionaries with the "power to resign at will," without their resignation being subject to acceptance by any authority. They may resign merely by writing under their hand addressed to an authority specified in the Constitution. 
• Needing no acceptance, the power to resign at will is an essential safeguard for the independence of these offices — it protects incumbents from being forced to work under coercion. 
• The offices vesting incumbents with this power are: the President; the Vice-President; the Deputy Chairman of the Rajya Sabha; the Speaker and Deputy Speaker of the Lok Sabha; a judge of the Supreme Court; a judge of High Courts; the Governor; the Speaker and Deputy Speaker of a State Assembly; the Chairman and Deputy Chairman of a State Legislative Council; and a member of Public Service Commissions. 
• In contrast, Article 101(3)(b) of the Constitution expressly makes the resignation of Members of Parliament subject to acceptance by the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha. Under Article 190(3)(b), the resignations of members of State Legislative Assemblies and Legislative Councils are similarly subject to acceptance by the Speaker or the Chairman. 
• A five-judge Constitution Bench of the Supreme Court in Union of India vs Gopal Chandra Misra (1978) unanimously reaffirmed the power of Supreme Court and High Court judges to resign at will.  
  • Justice S. Murtaza Fazal Ali dissented from the majority view that a resigning judge could choose a future date and withdraw the resignation before that date, but reflected the unanimous view of the Bench that no acceptance was needed for resignation of judges — the resignation acts ex proprio vigore (automatically, without requiring any external action). 
• At least 12 High Court judges have resigned since 2017. One Supreme Court judge, Justice Dalveer Bhandari, resigned in 2012 to join the International Court of Justice. Publicly available data suggests these resignations have been handled in compliance with the law described above.

The Anomaly of Continuing to List Mr. Varma as a Sitting Judge 

• Since Mr. Varma ceased to be a judge on April 9, describing him after that date as a sitting judge of the Allahabad High Court — in the Department of Justice's list or on the website of the Allahabad High Court — is clearly wrong. 
• There is no justification for retaining the name of a person who is not a judge in lists of sitting judges for over three months. 
• It would only be proper for the Union Department of Justice and the Allahabad High Court to correct the error and delete his name. It would, needless to say, be illegal for him to receive any salary or benefit as a sitting High Court judge.

The Fate of the Inquiry Committee's Report 

• The Committee's report pertains to Mr. Varma's conduct prior to his resignation. The resignation, therefore, does not affect the laying of the report before both Houses and its being made public. Indeed, there is a statutory duty to do so. 
• The public also has a legitimate right to know whether the Committee found any proved misbehaviour on the part of a sitting judge of a constitutional court. 
• If the report finds Mr. Varma not guilty of the charges, the matter ends there. 
• If the report finds him guilty, the motion for his removal can no longer be moved. Having resigned, Mr. Varma does not hold the office of a judge and cannot be removed from it. 
• Under Section 6 of the Judges (Inquiry) Act, 1968, the report is to be discussed by Parliament along with the motion. As the motion lapses and cannot be discussed, the report too cannot be discussed by Parliament under the Act.

The Case for Constitutional Amendment 

• There is a genuine concern that the framework for judicial accountability through removal proceedings under the Judges (Inquiry) Act, 1968 suffers from a loophole. Judges may resign at will before Parliament takes up the motion for their removal, halting the entire process. 
• This loophole is best addressed by amending the Constitution, rather than by executive or judicial interpretation of the Constitution or of the 1968 Act. 
• The amendment may provide that the resignation of a judge facing removal proceedings is subject to acceptance during their pendency. 
• To safeguard judicial independence, the power to accept the resignation of a judge should vest in the Chief Justice of India rather than in the President. 
• Should Parliament want to discuss the report submitted by the Inquiry Committee despite the judge's resignation, the Act should be amended to enable it for that purpose. 
• Interpreting inadvertent silences in the Constitution or the Act to suit the concerns of Parliament or the Executive would be against the rule of law.

Conclusion 

The Yashwant Varma episode exposes a structural gap in India's judicial accountability framework: the constitutionally protected "power to resign at will," meant to safeguard judicial independence, can also be misused to evade removal proceedings once misbehaviour is alleged. While Mr. Varma's resignation took automatic effect under settled constitutional law and cannot be undone, the continuing anomaly of his being listed as a "sitting judge" and the resulting inability of Parliament to discuss the Inquiry Committee's report highlight the need for constitutional amendment — vesting the power to accept such resignations, during pendency of removal proceedings, in the Chief Justice of India rather than leaving the process open to circumvention.