The demand by top jurists for a probe into the allegations of misconduct against former Chief Justice of India YK Sabharwal has created an unprecedented situation, as there is no set legal procedure to initiate an inquiry against a retired judge of the Supreme Court. Legal experts say a mechanism would have to be devised to take the matter forward.
Senior Supreme Court lawyer Rajeev Dhavan said that since the matter is of public importance and Justice Sabharwal is considered one of the finest judges the country has had, a fresh beginning is required to proceed in the matter. “I do not think there is any mechanism in the Constitution or in any law other than criminal law to examine misconduct by a retired judge. This is not a case of criminality and the definition of professional misconduct is wide ranging. Some mechanism would have to be devised for an inquiry to be made if, prima facie, a case is surely established.”
“A matter of public importance requires complete transparency in respect of a person who has held the highest judicial office. Justice Sabharwal was one of the best judges we had, and if doubts have been raised, these must be cleared,” he added.
Another senior lawyer, HS Phoolka, said: “There is no prescribed procedure for any inquiry against a retired judge. Only those who have been aggrieved by decisions in question can file review petitions in the Supreme Court seeking a fresh hearing, after the allegations came into public domain.”
Many other senior lawyers, who did not want to be named, said the Supreme Court Chief Justice should form an inquiry committee to look into the allegations, so that the truth can be brought before the people. Former Chief Justice of India MN Venkatachaliah expressed frustration on the failure to enforce judicial accountability and saw no point in talking about it. “I would not like to comment on any particular case, but judicial accountability is merely a term for debate now. There is no point in wasting time on it,” he told HT from Bangalore. India’s longest serving Chief Justice, YV Chandrachud, refused to comment.