The manner in which the judiciary deals with allegations of corruption has been put in the spotlight as a result of news reports that unaccounted cash was allegedly found in the home of Delhi High Court judge Justice Yashwant Varma.

Though no judge has ever been impeached or convicted for corruption in India, there are broadly two courses of action that can be taken against Supreme Court and High Court judges for corruption.

The first is an in-house procedure adopted by the Supreme Court to deal with complaints against judges, which may result in the judge resigning or not being allocated judicial work. In extremely rare cases, it may result in the sanctioning of prosecution of the judge. The second is impeachment by Parliament. Detailed in the Constitution, it leads to the judge’s termination.

According to legal experts, the lack of prosecutions for corruption indicates that the current mechanisms are not capable of addressing judicial corruption. They suggest reforms such as overturning Supreme Court judgments that shield judges from scrutiny and liberalising India’s strict standards of judicial contempt that prevent public discussion on corruption allegations against judges.

In-house procedure

The in-house procedure to address misconduct allegations against High Court and Supreme Court judges was introduced by the Supreme Court in 1999. A complaint against a High Court judge must be made to the president, the chief justice of India or the High Court chief justice, who examines it. For serious allegations, the judge’s response is sought.

If the explanation is satisfactory, the matter is closed. Otherwise, the complaint and response are forwarded to the chief justice of India, who may order a deeper inquiry.

A three-member committee comprising two High Court chief justices and one judge conducts an informal inquiry. The accused judge can participate, but lawyers and witness cross-examinations are not allowed. If the allegations are serious, the judge is advised to resign.

If they refuse, judicial work is withdrawn and the chief justice of India may recommend impeachment. For lesser misconduct, the judge is counselled and the committee’s report is shared with them.

The Supreme Court has ruled that inquiry reports under this mechanism are confidential, citing a 2003 judgement. As a result, the number of judges who have been proceeded against and actions taken against them remain unclear. In 2002, the Union Law Ministry informed Parliament that 1,631 complaints about judicial corruption had been received between 2017 and 2021 and forwarded to the chief justice of India or High Court chief justices.

Most recently, the Supreme Court collegium initiated such a procedure against Justice Shekhar Kumar Yadav of the Allahabad High Court for communal remarks at a Vishwa Hindu Parishad event at the High Court on December 8. The outcome of this is unclear and Yadav remains a judge in the High Court.

Impeachment process

The impeachment of a constitutional court judge follows the Constitution and the Judges (Inquiry) Act, 1968. Parliament can initiate removal under Article 124(4) and (5) of the Constitution read with Article 218 for “proven misbehaviour or incapacity,” though “misbehaviour” is not explicitly defined anywhere. Courts have interpreted it as corruption, lack of integrity or wilful misconduct.

A removal motion requires signatures from 100 Lok Sabha MPs or 50 Rajya Sabha MPs. If admitted, a three-member judicial committee investigates the matter. If misconduct is proven, Parliament votes, requiring a two-thirds majority in both Houses. If passed, the President is advised to remove the judge.

No Supreme Court or High Court judge has ever been impeached in India.

In 1993, Justice V Ramaswami of the Supreme Court became the first judge to face an impeachment motion for allegedly spending an excessive amount of funds on his official residence when he was chief justice of a High Court. Even though the judicial committee constituted by the speaker found Ramaswami guilty on 11 of 14 charges, the removal motion failed in the Lok Sabha.

In 2009, Karnataka High Court Chief Justice PD Dinakaran had an impeachment motion against him successfully passed in the Rajya Sabha for possessing assets greater than his legal sources of income. Even as the judicial commission was investigating the charges against him, he resigned in 2011.

In 2011, an impeachment motion was moved against Justice Soumitra Sen of the Calcutta High Court for misappropriation of public funds. A motion for his removal was passed by the Rajya Sabha. But he resigned before it came up before the Lok Sabha.

Criminal prosecution?

There have only been a handful of instances when constitutional court judges have faced criminal prosecution for corruption allegations.

In 1976, the Central Bureau of Investigation booked K Veeraswami, the Chief Justice of the Madras High Court, under the Prevention of Corruption Act, 1947. This followed a first information report detailing his assets having increased beyond his known sources of income after becoming chief justice. The Central Bureau of Investigation filed a chargesheet and a trial judge took cognisance of the matter after Veeraswami’s retirement.

He challenged the constitutionality of the trial in the Supreme Court. The Supreme Court dismissed his appeal and held in 1991 that judges are “public servants” under the Prevention of Corruption Act but ruled that the chief justice of India’s advice was necessary before registering a criminal case or commencing prosecution against High Court or Supreme Court judges.

However, Veeraswami died in 2010 while the case against him was pending.

In March 2003, the CBI, while investigating the staff of the Delhi Development Authority, found files that implicated Justice Shamit Mukherjee of the Delhi High Court in allegedly colluding with officials of the authority and a private litigant to fix a case. The CBI approached the chief justice of India, who asked Mukherjee to resign. Subsequently, the CBI charged him under the Prevention of Corruption Act. Mukherjee was taken into custody for a week by the agency.

In August 2008, corruption allegations against Justice Nirmal Yadav of the Punjab and Haryana High Court emerged when a bribe meant for her was mistakenly delivered to another judge. A Supreme Court in-house inquiry confirmed the mix-up. In 2011, the chief justice of India sanctioned prosecution against Yadav, and the CBI charged her on the day of her retirement.

In September 2017, Allahabad High Court lawyers complained to the chief justice of India about Justice SN Shukla of the High Court for allegedly accepting a bribe to fix an order. A Supreme Court in-house inquiry found the allegations credible. The chief justice of India urged Shukla to resign or retire voluntarily. After he refused, the chief justice of India directed the Allahabad High Court chief justice to withdraw his judicial work. Shukla continued to hold his position and earn full pay for over year despite not working until his retirement in July 2020.

The chief justice of India authorised a criminal complaint against Shukla in July 2019. In December 2021, the CBI formally charged him.

Also in September 2017, the CBI arrested retired High Court judge IM Quddusi on a conspiracy charge. He allegedly acted as a middleman for a medical college seeking to overturn a government ban, promising to get the matter settled in the Supreme Court through his contacts, with discussions of bribing a "captain" – allegedly then Chief Justice of India Dipak Misra – to secure a favorable order. He secured bail within a week.

The cases against Mukherjee, Yadav, Shukla and Quddusi are all pending in court.

Varma is scheduled to retire not before January 2031.

Reform needed

Legal experts told Scroll that the lack of any convictions or impeachments against judges showed that a rethinking of the options to deal with corruption is required.

Alok Prasanna Kumar, advocate and co-founder and team lead at the Vidhi Centre for Legal Policy, a legal think tank, said that the scale and scope of the problem must first be acknowledged. “Between hyperbolic claims of either absolute or no corruption, there's very little debate or discussion happening about judicial corruption in India,” he said. “The healthy practice of judges declaring their assets in public has been done away with now.”

Judges are not mandated to disclose their assets. Only about 13% of all High Court judges have voluntarily disclosed their assets.

Shubhankar Dam, Chair Professor of Public Law and Governance at the University of Portsmouth School of Law in the United Kingdom and author of a treatise on judicial corruption in India, called for an end to insulation from prosecution given to judges.

“The police cannot take cognisance on their own against corruption allegations against judges,” he said. “No action is possible till the Supreme Court overturns its two judgements from the 1990s.”

Dam was referring to the 1991 judgement barring the police from booking a sitting judge for corruption without the sanction of the chief justice of India. He was also drawing attention to a 1995 judgment in which the apex court broadened the constitutional prohibition on discussing judges’ conduct in Parliament – except during impeachment – to encompass all forums, groups, individuals, and associations. It even included investigative agencies like the CBI.

The court held that no such entity could “investigate or enquire into or discuss the conduct of a judge or the performance of his duties”, extending this restriction to both official performance and “off court” behaviours. This effectively shielded judges from external scrutiny.

Kumar also pointed to the pending case in the Supreme Court on whether the Lokpal should have the power to investigate judges for corruption. In February, the Supreme Court stayed a Lokpal order that said it has the power to entertain complaints against High Court judges.

“But it remains to be seen what can actually happen even if the Lokpal is so empowered,” he said.

Dam said that union and state governments must grant operational independence to the police, as mandated by a 2006 judgement of the Supreme Court. This would shield police action against judges from accusations of executive interference.

However, Dam thought it unlikely that governments would initiate any reform in this regard. “It is beneficial for governments to not investigate corruption allegations within the judiciary,” he said. “They can use them to control judges.”