Is Yashwant Varma still a judge?

Parliament is scheduled to take up the report of a committee appointed by the Speaker of the Lok Sabha under the Judges (Inquiry) Act, 1968, to probe allegations of misconduct against former Allahabad and Delhi High Court judge Yashwant Varma, who has since resigned, in the upcoming monsoon session. The charges against him stem from the discovery in March 2025 of partially burnt banknotes in an annex at his official residence. Mysteries surround its current status and the future course of the ongoing proceedings in Parliament.

On the one hand, three months after his resignation, Mr. Varma continues to be listed as a judge by the Allahabad High Court and the Union Government’s Ministry of Justice. This raised doubts as to whether his resignation became effective or whether it would remain subject to presidential acceptance.

On the other hand, it was reported that following Mr. Varma’s resignation on 9 April 2026 “with immediate effect”, his status at the Bar has been changed to “active” on resumption of practice. Since his resignation, some of his allowances and benefits as a judge have reportedly been stopped.

Four questions follow.

(1) Is Mr. Varma’s resignation subject to acceptance by the President?

Our constitution grants 13 constitutional functionaries the “right to resign at will”: the power to relinquish office at a time of their own choosing, without their resignation being subject to acceptance by any body. They can only resign with a written signature addressed to the authority specified in the Constitution. No further action is required. The power to resign at will, needing no acceptance, is a fundamental guarantee of the independence of these offices. It protects holders from being forced to work under duress against their conscience.

The authorities vested with this power are: the President; deputy chairman; Deputy Speaker of the Rajya Sabha; the Speaker and Deputy Speaker of the Lok Sabha; a judge of the Supreme Court; Judge of the High Courts; Governors; Speaker and Deputy Speaker of the State Assembly; Chairman and Vice-Chairman of the State Legislative Council; and a member of the Public Service Commission.

In contrast, Article 101 paragraph 3 letter b) The Constitution specifically says that the resignation of Members of Parliament is subject to acceptance by the Speaker of the Lok Sabha or the Speaker of the Rajya Sabha, as the case may be. According to Article 190 paragraph 3 letter (b) resignation of members of State Legislative Assemblies and Legislative Councils shall also be subject to the approval of the Speaker or Speaker.

A five-judge Constitution Bench of the Supreme Court in Union of India vs Gopal Chandra Misra (1978) unanimously reaffirmed the power of High Court and Supreme Court judges to resign at will.

Justice S. Murtaza Fazal Ali dissented from the majority of judges who held that a retiring judge can choose a future date and withdraw his resignation before that date. But Justice Ali echoed the unanimous view of the Bench that no consent was required for the resignation of judges. He categorically wrote that “the effectiveness of a resignation does not depend on the president’s acceptance of the resignation…the resignation operates ex proprio vigore” (automatically without the need for any external action).

At least 12 High Court judges have resigned since 2017. One Supreme Court judge, Justice Dalveer Bhandari, resigned in 2012 to become a member of the International Court of Justice. Publicly available information indicates that these resignations were negotiated in accordance with the law described above and became effective as determined by the retiring judge, without the effectiveness of the resignation being dependent on acceptance by the President or anyone else.

(2) Can Mr. Varma still be considered as a judge; can he continue to draw the benefits of the office?

Since Mr. Varma ceased to be a judge on April 9, describing him as a judge of the Allahabad High Court in the Ministry of Justice’s list or on the Allahabad High Court’s website after that date is clearly incorrect.

There is no justification for keeping the name of a non-judge in the lists of judges for more than three months as was the case with Mr. Varma. It would be right for the Union Ministry of Justice and the Allahabad High Court to correct the mistake and clear his name. Needless to say, it would be illegal for him to receive any salary or benefits as a Supreme Court judge.

(3) Does the proceeding survive the resignation when the removal from office is moot?

The committee’s report concerns the conduct of Mr. Varma prior to his resignation. The resignation therefore does not affect the presentation of the report to both houses and its publication. In fact, there is a legal obligation to do so. The public also has a legitimate right to know whether the Committee has found any proven misconduct on the part of a Constitutional Court judge.

If the report finds Mr. Varma not guilty of the charges, that is the end of the matter. According to Section 6(1) of the Judges (Investigation) Act, “no further steps shall be taken in any House in relation to the report and no motion shall be discussed in the House or Chambers”, i.e. a motion to make a speech to the President asking for his removal.

Even if the opinion finds him guilty, the motion for his recall cannot be postponed. Mr. Varma does not hold the office of judge after his resignation and cannot be removed from it. Pursuant to Section 6, the report and the proposal are to be discussed by the Parliament. Since the motion lapses and cannot be debated, the report cannot be debated by Parliament under the law either.

(4) Should the Constitution be amended so that judges facing impeachment cannot avoid responsibility by resigning?

There is a real concern that the framework for judicial accountability through appeal proceedings under the Judges (Inquiries) Act 1968 suffers from a loophole. Judges can resign at will before Parliament passes a motion to remove them, halting the entire process.

This loophole is best addressed by constitutional amendment, rather than by executive or judicial interpretation of the Constitution or the 1968 Act. An amendment may provide that the resignation of a judge pending appeal is subject to acceptance during his tenure. To ensure the independence of the judiciary, the power to accept the resignation of a judge should be vested in the Chief Justice of India rather than the President. If Parliament wanted to discuss the report submitted by a statutory inquiry committee despite the resignation of a judge, the Judges Inquiry Act should be suitably amended to allow for this. To construe inadvertent silence in a constitution or statute to suit the interests of Parliament or the executive would be against the rule of law.

(G. Mohan Gopal is former Director of the National Judicial Academy and former Vice-Chancellor of the National Law School, University of India, Bengaluru. V. Venkatesan is Contributing Editor, Supreme Court Observer. Opinions are their own)

Published – 22 Jul 2026 08:00 IST