Kochi (Kerala) [India], June 7 : Rajya Sabha Chairman Jagdeep Dhankhar has expressed hope that a FIR will be registered over allegations of discovery of unaccounted cash at residence of Justice Yashwant Varma during a fire incident when he was a judge of Delhi High Court and said there is need to go into the root of the matter.
Interacting with the students and faculty members at the National University of Advance Legal Studies (NUALS) today, the Vice President said that the government at the central level is handicapped because an FIR cannot be registered in view of a judgment of the Supreme Court rendered in early 90s.
"Our judiciary had Ides of March on the night intervening 14th and 15th March...Cash in large amount was found at the official residence of a judge of the High Court...If that cash was found, the system should have moved immediately and the first process would have been to deal with it as a criminal act, find out those who are culpable and bring them to justice. But so far, there has been no FIR. The government at the central level is handicapped because an FIR cannot be registered in view of a judgment of the Supreme Court rendered in early 90s. I'm all for independence of Judiciary. I'm a strong votary of protecting judges...We must protect our Judges from frivolous litigation...But when something like this happens, it is worrisome," he said.
The Vice President said that proceeding with the Constitutional mechanism of dealing with the judge in terms of constitutional provision is one way out, but that is not a solution because "we claim to be a democracy which we are".
"The world looks at us as a mature democracy where there has to be rule of law, equality before law which means every crime must be investigated. If the money is so huge in volume, we have to find out. Is it tainted money? What is the source of this money? How was it stocked in the official residence of a judge? It belonged to whom? Several penal provisions are violated in the process. I do hope an FIR will be registered. We must go to the root of the matter because, for democracy, it matters that our judiciary in whom the faith is unshakable, its very foundations have been shaken. The citadel is tottering because of this incident," he said.
Union Parliamentary Affairs Minister Kiren Rijiju had said earlier this month that he is working on building a consensus amongst all political parties to move an impeachment motion against High Court judge Justice Yashwant Varma.Speaking to ANI, the Union Minister said that there is no scope for any politicking, as the impeachment motion against Justice Yashwant Varma is a matter related to corruption in the judiciary.
"The impeachment motion against Justice Yashwant Varma is a matter related to corruption in the judiciary. So, there is no scope for any politicking. There is no scope for taking a separate political position for every party. So, we would like to have a united stand; Parliament as a whole will have to come together to discuss this matter and move forward. So, I am building consensus amongst all political parties, and I have started discussions with prominent leaders, and I will reach out to everybody," Rijiju said.
The Supreme Court had constituted an inquiry committee following allegations of "burnt cash" found at a storeroom of Justice Varma's residence when he was a Judge of the Delhi High Court. The in-house inquiry committee submitted its report on the issue last month, which has since been forwarded to the Prime Minister and the President of India.
The Vice President urged students to have the courage to confront problems.
"We must have courage to confront problems. We must not rationalise failures. We must always remember we belong to a nation that has to define global narrative. We have to be architects of a world that lives in peace and harmony. We must have first courage to confront uncomfortable truths within our own institutions," he said.
"We had turbulent times in the judiciary recently. But the good thing -- and soothing -- is that a big change has taken place. We are seeing good times now for the judiciary. The present Chief Justice and his immediate predecessor gave us a new era of accountability and transparency. They are getting things back on the rails. But the earlier two years were very disturbing, very challenging. The normal system was not normal. Thoughtlessly, several steps were taken -- it will take a while to undo them. Because it is very fundamental that institutions function with optimal performance," he added
He said judiciary in the country commands immense trust, immense respect of the people.
"People believe in the judiciary like no other institution. If their faith is eroded -- shaken in the institution -- we will be faced with a grim situation. A nation of 1.4 billion will suffer", he further added.
Expressing his concern over post retirement assignments for judges, he said certain constitutional authorities are not permitted to hold assignments after their office like a Public Service Commission member cannot take any assignment under the government.
"CAG can't take that assignment. Chief Election Commissioner and Election Commissioners can't take that assignment because they must be free, not to be subjected to allurements and temptations. This was not for judges. Why? Because judges were expected to be totally away from it. And now we have post-retirement, post for judges...And not all can be accommodated, only some can be accommodated. So when you can't accommodate all, you accommodate some, there is pick and choose. When there is pick and choose, there is patronage. It is seriously impairing our judiciary," he said.
Underscoring the significance of the nature of oath taken by the President of India and Governors, Dhankhar stated the President and the Governor are the only two constitutional offices who have an oath different than the Vice-President, the Prime Minister, the Chief Minister, Members of Parliament, Members of Assembly, and other functionaries like judges.
"Because all of us -- the Vice-President, the Prime Minister, and others -- we take oath to abide by the Constitution, but the Hon'ble President and the Hon'ble Governor -- they take oath to preserve, protect, and defend the Constitution. Am I clear? So, their oath is not only very distinct, their oath is obligating them with the onerous task of preserving, protecting, and defending the Constitution. I hope there is realization all around about this constitutional ordainment for the post of the Governor," he said.
"Second, what stands out the President or the Governor, apart from the rest of us, like the Vice-President, Prime Minister and Chief Ministers and Ministers, is only these two designations have immunity from prosecution. No one else has. While they hold office, they are immune to any prosecution, pending or contemplated. And I am so happy and delighted that Rajendra V. Arlekar is setting very high standards as Governor because a Governor is easy punching bag," the Vice President added.
He also referred to the debate about the demand for some changes in Preamble of the Constitution.
"Let me tell you, preamble of Indian Constitution is something like parenthood to children. However you may try, you can't change your parenthood. Am I right? That's not possible. That is Preamble. Secondly, historically, no country's preamble has ever been changed. Thirdly, the Preamble of our Constitution was changed during a time when hundreds and thousands of people were behind bars. The darkest period of our democracy was the Emergency era. Then, it was changed, and the life of the Lok Sabha was also increased beyond five years. It was changed at a time when people had no access to the justice system. Fundamental rights were totally suspended. You need to examine it. We may do anything, we surely can't change our parents," he said.
"You will have to think aloud what happened in the 42nd Constitutional Amendment Act. What happened in 44th and what was left over? Why were lakhs jailed without access to the judiciary? How come nine High Courts decided in favour of the citizens, but the Supreme Court, the highest court of the land, failed us in the ADM Jabalpur case? And reversed, indicating two things----It is absolute prerogative of the executive to impose Emergency and to impose Emergency for as much time it takes. In 1975, it was 20 plus months, and during the proclamation of Emergency period, there will be no access to Judiciary. So we forfeited at that point of time our total claim to be a democratic nation", he added.
Underscoring the significance of doctrine of separation of powers, he said constitutional essence and spirit is optimally nurtured and sustained and it blossoms with each of the pillars of constitution working in tandem to get the nation in harmony but if the legislature, the executive and judiciary are not on the same page, if they are not in sync with each other, If there is no harmony amongst them, then the situation gets little worrisome.
"And that is why, as law students, you will be focusing on the doctrine of separation of powers. The issue is not which is supreme. Each institution of the Constitution is supreme in its own area. If one institution -- the judiciary, the executive, or the legislature -- makes an incursion into the domain of the other, it has the potential to upset the apple cart. It can create unmanageable problems that can be potentially very dangerous for our democracy," he said.
"Adjudication has to take place within the judiciary. Judgments are to be scripted by the judiciary -- not by the legislature, not by the executive. And similarly, executive functions are performed by whom? By the executive. And why? Because you elect the executive -- the political executive -- through elections. They are accountable to you. They have to perform. They have to face elections. But if executive functions are done by, let's say, the legislature or the judiciary -- that will be antithetical to the essence and of the doctrine of separation of powers......I am aghast that a functionary of the executive like the CBI director is appointed with the participation of Chief Justice of India. Why? And just think, and steer your minds. CBI director is not the senior most person in the hierarchy. He has above him several layers, CVC, Cabinet Secretary, all Secretaries. After all, he's heading a department. You must use your pen. Is it happening elsewhere in the world? Can it happen under our constitutional scheme? Why should an appointment of the executive be made by anyone else other than the executive. I strongly say so," he added.