The Supreme Court on Thursday reserved its verdict on Justice Yashwant Varma’s challenge to the impeachment process against him, but questioned his argument that a headless Rajya Sabha should have waited for a new Chairperson before deciding on the impeachment motion.

Justice Varma contends that the Lok Sabha Speaker’s “unilateral” formation of the probe committee is invalid because impeachment notices had been moved in both Houses and, under the law, the two presiding officers should have together formed the panel.

However, Rajya Sabha Chairperson Jagdeep Dhankhar had resigned the day 50 Opposition MPs had moved the impeachment motion in his House, and the government claimed the motion was never admitted.

Justice Varma’s lawyers deny this and have cited a statement from the Upper House secretariat — made in reply to an apex court query — that the deputy Chair had rejected the motion after Dhankhar’s July 21 resignation. The lawyers have argued the deputy Chair lacks the authority to decide such matters.

“Where is the precedent that it cannot be? Your argument is that only the Chairman has the power…. But today we have a situation where the Chairman resigned,” Justice Dipankar Datta, who headed a bench that included Justice Satish Chandra Sharma, said.

Senior advocates Sidharth Luthra and Mukul Rohatgi, representing Justice Varma, argued that while the Chairperson is non-partisan and has only a casting vote in such disputes, the deputy Chair — called on to officiate as presiding officer only in contingencies — is not so.

They cited the hypothetical possibility that the deputy Chair might have actually signed the impeachment motion (which he had not in this instance) — how could he then decide it impartially?

After Opposition MPs had moved the motion, Dhankhar had enquired whether a similar notice had been given in the Lok Sabha, too, and spelled out the rules to be followed in such instances.

Some Opposition MPs have suggested the government saw this as an inclination to admit the motion and forced Dhankhar to resign because it wanted the motion admitted only in the Lok Sabha, where the Treasury benches were part of the initiative.

Lok Sabha Speaker Om Birla formed the probe committee after admitting a bipartisan impeachment notice moved by 100 MPs in connection with the accidental discovery of bags of partially burnt, unaccounted cash from the judge’s then residence in Delhi.

Justice Varma, then with Delhi High Court, was later transferred to Allahabad
High Court.

Justice Datta said there could not be a “vacuum” in the absence of a House Chairperson.

“It would be difficult for us to accept the position that for a (prolonged period) no decision can be taken. If there is any such contingency which requires imminent action by the Chairman, who will do it?”

Luthra said the deputy Chairperson had rejected the motion moved by the Rajya Sabha MPs without giving it “proper consideration” or providing a reason but merely appending a “one-line signature”.

He said such an approach was antithetical to Articles 124(4) and 124(5) of the Constitution that deal with the impeachment of Supreme Court and high court judges.

Solicitor-general Tushar Mehta, representing the secretariats of the two Houses of Parliament, said the question of forming a joint committee would arise only if both motions had been admitted by the two Houses on the same day.

But this did not happen, he asserted, echoing the government stand.

The three-member inquiry committee formed by Birla is made up of Justice Aravind Kumar of the Supreme Court, Chief Justice M.M. Shrivastava of Madras High Court, and Karnataka-based senior advocate B.V. Acharya.