'Mystified By Judge's Transfer': Top Lawyer Mukul Rohatgi On Cash Case

Former Attorney General of India Mukul Rohatgi called for a thorough investigation into allegations that a cash stash was found on the premises of Delhi High Court judge Justice Yashwant Varma. Mr Rohatgi, in an interview to NDTV, said the matter "does not look like an open and shut case".

Referring to the Supreme Court confirming the transfer of Justice Varma to the Allahabad High Court, Mr Rohatgi said he was "mystified" by the announcement.

The Supreme Court in a press note on Friday said the transfer process of Justice Varma was unrelated to the inquiry into the alleged cash stash row.

Read Mr Rohatgi's interview to NDTV:

Q: The Supreme Court transferred Justice Verma to his parent court, which is the Allahabad High Court. The Supreme Court said the transfer has nothing to do with the cash stash case. How are you viewing this?

A: I have never understood the statement that this transfer proposal has nothing to do with the cash scam. According to me, it is because of the cash scam that he is being proposed to be transferred... Ultimately, the point of the transfer is not that important because he doesn't have any judicial work. So whether he sits in his house in Delhi or whether he sits in his house in Allahabad, what difference will it make? The real question is that we should come to the bottom of the issue as early as possible whether the judge is a delinquent, is he guilty of moral turpitude, or he is not and his reputation is being damned. There are several loose ends in this case as of now which need to be answered. So I don't think there is any great thing in saying that the transfer is not connected to the scam. I'm actually mystified by this statement of the Supreme Court.

Q: The issue has reached parliament. MPs are of the opinion that had the person been a non-judge, any other citizen, a politician or a bureaucrat, then it would have led to a criminal investigation. Does it really stop at an investigation which is clearly an in-house investigation by the judiciary?

A: No. Please understand and your viewers also must understand. The position of a judge is entirely different from a bureaucrat or a police officer. Why? Because a judge decides cases day in and day out. Everyday one party to a case is dissatisfied and unhappy with the decision because the decision has gone against one party. So there is a natural reaction in our country which is full of cynics that the judge may have been bought over or is won over by one party or the other. A large number of complaints are made everyday against every judge, whether of the first court, second court, high court, or Supreme Court. And therefore, you can't start a police investigation in every case where people file such complaints. A judge cannot fearlessly be independent when these swords, several swords are hanging on his heads. Parliament in its wisdom talked about impeachment. There is an in-house procedure for looking at some of these sensitive complaints. 99 per cent complaints are thrown in the dustbin. But some complaints do merit some prima facie investigation or maybe a full-blown investigation. Now that is left to the Chief Justice or the Chief Justice of India to decide because you know otherwise the system of justice will come to an end. It is this difference which makes a difference between the judiciary and other wings of the executive or even parliament. This is how we must perceive it. I am not for a moment trying to say that anybody is above the law. Even a judge can be prosecuted, but it requires a nod from the Chief Justice of India. This was settled in a famous case of a judge of the Supreme Court called K Veeraswami case. So that's how it goes.

Q: Visuals of the burnt cash are in the public domain and they have tarnished the image of the judiciary. What measures do you think the judiciary must take to restore public faith?

A: First, about the recovery of cash. Now where is that recovery? There is no recovery. There is no evidence. The entire evidence if at all has been destroyed by the police, by the fire department. There were a large number of Rs 500 notes which I saw very clearly in the video and I have seen better pictures including in the Free Press Journal Mumbai edition this morning. So where are those notes? Where have they gone? Even if Rs 5 lakh is found in the office of a junior engineer, it is seized immediately, income tax officials take over. What happened in this case? The police commissioner was aware. The next morning, everything is over. No evidence is found. It's only rubbish there. They say it was thrown with garbage. So what kind of job has the police done? I am amazed. Can you have a case of corruption where it is [caught] red-handed, kind of red-handed where money is found, but there is no money? So that is one part of the case but I don't want to comment any further on that. Investigation will tell us and you need a police investigation, not an investigation by three judges. That cannot help. You need a forensic investigation. Large number of CDRs (call detail records), large number of CCTV footage, different personnel of police, fire department, NDMC, CRPF, all that has to be kind of collated and examined.

To the second question, obviously it's a huge dent in the heart of the justice dispensation system where people see this kind of thing and if the judge is guilty, strict action should be taken at the earliest. The larger issue is the old debate of the manner of appointment of judges and the manner of disciplinary proceedings against judges. They have to be re-looked at. The appointment system of the collegium is completely unsatisfactory and opaque. That was not what the Constitution said. The Supreme Court has interpreted the Constitution somewhat selectively in its judgment where consultation with the Chief Justice has become concurrence of the Chief Justice. I am sure there is a clear difference between the two words, but that's how the judgment stands. So the attempt to bring in some sunlight was by the NJAC (National Judicial Appointments Commission) Act 10 years ago. That was shut down by the court. The court did not want to give up the power of appointment. All right, if the NJAC was banned, we can have some sunlight via the media, some outsiders in a committee which should recommend judges and not only judges selecting judges. Anyway, that's one debate.

Another issue is we must have a better system for purposes of disciplinary action. Today, the only action under the Constitution is impeachment. Impeachment is so laborious, complex and difficult that no impeachment has happened in the last 75 years. You need 100 MPs of Lok Sabha to start action for impeachment. Then it requires an admission order by the Speaker because some material has to be shown. That requires a debate. Then it requires a full-blown inquiry of judges being members of a committee appointed by the Speaker. That's a full-blown inquiry where examination, cross-examination, production of documents, etc is there. After that, the matter has to go back to the house for debate. Then in that debate, two-thirds of the MPs have to approve the motion and the motion has to be in that session alone. So you know parliament, government and stakeholders including public, lawyers etc must bring about a consensus to remove this so-called impeachment system, bring in a more smoother system and manners of investigation.

Q: You want the impeachment system to be done away with to bring a system that's faster?

A: No, because ultimately the proof of the pudding is in eating. Yes. Three or four attempts of impeachment have been made in the last 70 years. Nothing has succeeded. Nothing has come to fruition. Therefore, you have to get rid of that system. Times have changed. Bring a new system, a faster system because the justice system cannot afford any delay. If the dispenser of justice is himself under a cloud, what kind of justice will be dispensed? But I must tell you one thing, I am very happy that the Supreme Court in this case [judge cash row] has been more transparent than it has been in the past. Everything is now in public domain and I think hats off to the Chief Justice of India for taking such a courageous stand for showing everything to the public.

Q: This incident has highlighted the need for greater transparency and accountability within the judiciary. There are unanswered questions including the source of that cash. How did it reach that house?

A: As Justice Verma said, when that explanation was sought by Chief Justice DK Upadhyaya of the Delhi High Court, he said that the cash doesn't belong to him. So there are a lot of questions that have to be answered. First thing, where is the cash? Where are the burnt notes? That's the first thing. The second thing is, you examine the CCTV of the last three months. How was that room accessed? Did it have a lock? Who had the key if it was locked? CCTV would show how it was accessed. It may also show sacks coming in because sacks are not something you put in your pocket. How could sacks come in? The CRPF is at the house of every judge. It's not that simple that you bring in sacks. So what was in the sacks? Were they notes? What was it? I don't know. Today the material is gone. You require circumstantial evidence because the primary evidence is gone. But whatever it is, get down to the bottom of it at the earliest is what I would say.

Q: These are allegations of corruption within the judiciary, so something has to be done from within the judiciary to protect the reputation of judges as well?

A: Obviously, as I said, bring in a more transparent system, starting with appointments and going on to disciplinary systems. Transparency is possible only if you let some sunlight in. Bring some outsiders, people on public platforms of high integrity. You could even have a statesman-like person, you could have an author, you could have a Nobel laureate, you could have a Bharat Ratna, you could have some of those people. It will instill confidence because otherwise people generally say, oh, judges are appointing judges, they are appointing the relative of a judge known to them. All this kind of talk is going on. To remove all this, you must have sunlight, which is the best disinfectant.

Q: As a member of the Bar, how do you look at Allahabad High Court lawyers' move to protest against the transfer of Justice Varma?

A: I think it is too hasty a decision because I am still not very convinced in my mind, as of today, and as the facts are placed today, that it's an open and shut case. I don't think one should start off with these kinds of remarks off the cuff. Let us see what material is brought out, let us see what this committee reports, and then we should take a call. And as it is, work has been withdrawn from the judge. As I said in the beginning, what difference does it make whether he stays in his house in Delhi or Allahabad."