Manish Tewari | Yashwant Varma And The Riddle Of Judicial Liability

India’s judicial accountability framework has entered largely uncharted constitutional territory. The case involving Justice Yashwant Varma is no longer merely about allegations against a sitting high court judge; it has now become a test of whether India’s impeachment architecture can continue to function after a judge has attempted to resign, but before that resignation has been formally accepted by the President.

This peculiar constitutional limbo has few parallels in India’s legal history.

Justice Varma reportedly tendered his resignation to the President in April 2026 “with immediate effect” amid mounting scrutiny and an ongoing removal process. Yet, crucially, there has been no public notification of acceptance of the resignation by the President. Reports continue to indicate that he technically remains a high court judge because the resignation has not been formally acted upon.

At the same time, the statutory judges’ inquiry committee constituted under the Judges (Inquiry) Act, 1968, has completed its work and submitted its report to Lok Sabha Speaker Om Birla. The Lok Sabha secretariat has now stated that the report will be laid before Parliament “in due course”. This is what makes the present moment extraordinary: the institutional machinery of impeachment is still moving even after the judge has sought to demit office.

Historical evolution of the Doctrine of Impeachment: The first recorded judicial impeachment occurred as far back as 1350 in England, during the reign of King Edward III. The British Parliament impeached Sir William de Thorpe, the Chief Justice of the King’s Bench, for taking bribes in exchange for granting pardons to people convicted of heinous crimes. In 1773 Robert Clive was investigated by two parliamentary committees for rapacious conduct during his tenure as Governor of Bengal. From 1787-95, Warren Hastings the Governor General of Bengal, was also subject to a protracted impeachment proceeding for his egregious acts in India.

The constitutional design of judicial removal in India: Under Articles 124(4) and 217 of the Constitution of India, judges of the Supreme Court and high courts can only be removed by the President after an address by both Houses of Parliament supported by a special majority on grounds of “proved misbehaviour” or incapacity. The Judges (Inquiry) Act, 1968 operationalises this process. The removal mechanism broadly unfolds in five stages: A motion signed by at least 100 Lok Sabha MPs or 50 Rajya Sabha MPs is submitted. The Speaker or Chairman admits the motion. A three-member inquiry committee investigates the allegations. If the committee finds the judge guilty of misbehavior or incapacity, Parliament debates and votes on the motion. If both Houses pass the motion with the required special majority, the President issues an order removing the judge.

The framers deliberately made removal extremely difficult in order to preserve judicial independence. But they did not fully contemplate a situation where a judge facing impeachment could simply resign midway through proceedings. That loophole has now resurfaced yet again.

The Soumitra Sen precedent: The closest parallel remains the 2011 impeachment proceedings against Justice Soumitra Sen of the Calcutta High Court. In that case, the Rajya Sabha successfully passed an impeachment motion against him on August 18, 2011. Before the Lok Sabha could vote, Justice Sen resigned and sent his resignation to the President. There was initial debate on whether Parliament could still proceed with impeachment despite the resignation. Some constitutional experts and even the Attorney General reportedly believed the Lok Sabha could continue the process. However, President Pratibha Patil accepted Justice Sen’s resignation before the Lok Sabha vote took place. The proceedings subsequently became infructuous.

Similarly, former Sikkim High Court Chief Justice P.D. Dinakaran also resigned while the inquiry committee proceedings were in motion, effectively terminating the process before its completion.

But the Justice Varma case differs in one crucial respect. In the earlier cases, resignation ultimately brought the process to a halt because the judges ceased to hold office. Here, however, the resignation appears to be pending. That means the constitutional status of Justice Varma remains uncertain: Has he effectively demitted office, or does he continue to hold judicial office until formal acceptance by the President? That distinction could determine the future course of the proceedings.

Can Parliament still proceed? The answer may depend on a narrow but important constitutional interpretation. Article 217(1)(a) permits a high court judge to resign by writing addressed to the President. However, unlike ordinary employment law, constitutional offices often involve formal acceptance procedures and official notification. In practice, judges’ resignations are generally notified by the Union government after presidential acceptance. Since no such notification appears to have been issued in Justice Varma’s case, the government may still treat him as a sitting judge. If that interpretation holds, Parliament could theoretically continue with the impeachment process after the inquiry committee’s report is tabled.

The report itself is important because the committee stage is the heart of the statutory process. It is here that evidence is examined, witnesses heard, and findings recorded. Once laid before Parliament, MPs may still choose to debate and move forward with a removal motion. Yet there are equally strong institutional and political reasons why Parliament may hesitate.

Historically, impeachment has always been viewed as a remedy to remove a sitting judge, not as a symbolic post-office censure mechanism. If the executive eventually accepts the resignation before parliamentary voting begins, the government may argue that the proceedings have become unnecessary.

This is why the current moment represents a constitutional grey zone rather than a settled legal position.

A larger accountability problem: Beyond the immediate controversy lies a deeper institutional question: Should judges facing impeachment be able to avoid a final parliamentary verdict simply by resigning?

This creates a serious accountability vacuum. A resignation may remove the judge from office, but it prevents Parliament from formally recording findings on misconduct. It also denies the public a complete constitutional closure.

That concern has now become sharper because the Justice Varma proceedings have advanced further than most previous cases. The inquiry committee has already completed its investigation and submitted its report.

The spectacle of a completed inquiry existing alongside an unaccepted resignation exposes a structural gap in India’s judicial accountability system.

In many ways, the Varma case may become less significant for its underlying allegations and more for the constitutional precedent it leaves behind. If Parliament proceeds despite the pending resignation, India could witness its first full-scale attempt to carry an impeachment process forward after a judge has sought to resign. If the resignation is accepted before further parliamentary action, it will once again reinforce the long-standing pattern where resignation effectively terminates constitutional accountability proceedings.

Either way, the case has already exposed a fundamental truth: India’s impeachment framework was designed to protect judicial independence, but it was never fully prepared for the possibility that resignation itself could become a constitutional escape hatch.