When Resignation Does Not End Office

June 2, 2026
7:00 am

The Legal Peculiarity of Justice Yashwant Varma’s Continuing Judgeship

“…however good a constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot[1].”

-Dr.B.R. Ambedkar

It took more than a year for him to resign, and when he did, the Hon’ble President of India(hereinafter as “the President”), acting on the aid and advice of the Council of Ministers headed by the Prime Minister [2], chose not to accept what may publicly be perceived as the “moral defeat” of constitutionally grounded governance.

The questions of accountability, transparency, and public faith were thrust upon the then sitting judge of the Delhi High Court, yet when the ball came to the court of the parliamentarians, there appeared a certain sluggishness in the pace at which they sought to fulfil what are, in essence, their constitutional duties.

This article neither seeks to justify any illegality, if committed by Justice Yashwant Varma(hereinafter referred to as “the concerned judge”), nor does it presume his guilt. The author’s contention is confined to what transpired within the corridors of power in Lutyens’ Delhi and how such developments ultimately define executive overreach in constitutional governance. The developments may be viewed as an instance of executive overreach and set a precedent that may later affect the people of India themselves.

Constitutional boundaries exist not merely as procedural formalities; instead, they safeguard against institutional conflict and the arbitrary exercise of power by any one organ of the state. To understand this, we may recall a recent event that drew a lot of attention in the media.

This article examines the fine details and nuances people often fail to notice, particularly from the perspective of seasoned constitutional law experts analysing the balance between judicial independence and executive authority. The saga of the concerned judge did not end with his resignation. It is merely another chapter unfolding itself, and this one defines the larger constitutional questions we, the people of India, have to face in our republic.

The Letter And Spirit Of The Law

After the tumultuous year, full of inquiries, allegations, and unanswered questions, the episode finally drew its first formal curtain when he tendered his resignation from the “office of judge of the Hon’ble High Court of Judicature at Allahabad” to the President on 9^th of April 2026, more than a year later, when cash was allegedly discovered at his Delhi-based official residence.

In any normal scenario, this would have been considered as the end of the matter, but it turns out to be different. While tendering his resignation under Article 217(1)(a) of the Constitution [3] (hereinafter referred as “the Constitution”), he expressed his deep anguish at taking such a decision, emphasizing that continuing with the ongoing inquiry initiated by the Lok Sabha would not allow him a fair opportunity to defend himself.

However, as of the date of writing this article, his name continues to be displayed at the official website of the Hon’ble High Court of Judicature at Allahabad. While this can be brushed aside by terming it a technical delay in updating the website, as several media reports[4]and opinions of legal experts suggest that this is not something unintended.

Constitutional Pathways To Judicial Vacancy

A vacancy on the High Court bench can arise in several ways, like impeachment(no judge of either the High Court or the Supreme Court has been impeached to date in the history of Independent India) or by resignation before the age of retirement (except in cases of transfers or promotions to the Supreme Court of India).

In the case of resignation, by convention, when a High Court judge resigns, the President formally acknowledges it, and the judge ceases to hold office. However, the President has neither acknowledged nor expressly rejected the resignation letter, leaving the process in abeyance.

The Settled And Unsettled Positions In The Law

Though the judge of the High Court is appointed by the President under Article 217 of the Constitution[5]. The President only performs the formal ceremonial obligations in the process of removal of a judge (either in case of Impeachment or in resignation). The language of the Article 217(1)(a):-

(a Judge may, by writing under his hand addressed to the President, resign his office),

which deals with the resignation process, is silent on the function of the President in such cases. The Supreme Court, through its majority opinion in Union of India v. Gopal Chandra Misra (1978) 2 SCC 301[6], clearly held that “The concept of the acceptance of resignation submitted by a High Court judge is completely absent from Article 217(1)(a), and the effectiveness of the resignation does not depend upon the acceptance of the resignation by the President.” The resignation contemplated by Art. 217(1)(a) is purely a unilateral act and takes effect ipso facto once the intention to resign is communicated to the President in writing and addressed to him.

This principle was established in the case when the judges sought to exercise the right to revoke the resignation before its effective date. The judge had first resigned and then attempted to revoke it unilaterally. The Court framed the critical question, whether the judge ceases to hold office upon communicating the resignation to the President, or formal acceptance by the President is required, which in this case was absent. The present factual and contextual situation of the concerned judge is starkly different from that of the precedent.

Whether the principle laid down in Gopal Chandra (supra) applies here or not is a matter of debate for another day. The author, in fidelity to the readers, presumes its applicability, since the judgment of the apex Court has neither been reversed nor has any distinct exception been carved out for cases where facts are materially different. Though the apex court tried to bring some certainty in this aspect, the subsequent actions and inactions reflect a starkly contrasting view compared to what was held in the above-mentioned case. This point will be substantiated later in the article by discussing past precedents in similar matters.

The Judges Inquiry Act, 1968: A Legislative Void

Here, along with constitutional provisions, we must understand the statutory framework governing the judges in cases of misconduct inquiry. This particular aspect is being governed by the Judges Inquiry Act of 1968(hereinafter referred to as “the Act”).

The inquiry committee set up by the Speaker of Lok Sabha, Shri Om Birla, under section 3(2)[7] of the Act, comprising JJ. Aravind Kumar (Supreme Court Judge), JJ. Manindra Mohan Shrivastava (C.J., Madras High Court, later replaced by Chief Justice Shree Chandrashekhar of the Bombay High Court) and B.V. Acharya (Senior Advocate, Karnataka High Court) were tasked to submit the report if found proven misbehaviour or incapacity in the concerned judge’s conductthe only grounds mentioned in the Constitution for removal of a High Court judge under Article 124(4)[8] to be read with Article 217(1) of the Constitution) under section6[9] of the Act.

However, the Act is explicitly silent on the functioning of the Inquiry committee once a judge tenders their resignation in the mid-way during the ongoing proceedings of the committee. This presents a legal lacuna, on which many past examples can be found where judges either refused to participate or tendered their resignation, leaving the inquiry committee hanging in the air while the final decision was in the hands of the Speaker or Chairman, whichever constituted such a committee at their discretion. This constitutional lacuna has been exposed three times in Indian judicial history during the cases of Justices P.D. Dinakaran (2011), Soumitra Sen (2011), and Yashwant Varma (2026).

The Case Of Judicial Officers

This stands in stark contrast to the position of Judicial Officers in the district judiciary of the State during inquiry proceedings. For instance, Rule 36(2) of the Gujarat Civil Service Rules[10] expressly prohibits acceptance of a resignation when a departmental inquiry is pending. This underscores the sharp legislative divide in clarity. While the position of a High Court judge is governed by the Constitution and the relevant Act, both of which remain silent, the district judiciary is bound by explicit statutory rules. In the latter case, only the letter of the law is being applied, without regard to the spirit with which it was enacted.

What Happens With The Inquiry Committee

The legal conundrum surrounding the validity and scope of proceedings of the inquiry committee needs to be discussed here in detail. As explained above regarding the formal setup and subsequent report submission by the committee, it is bound to submit its report on each of the alleged charges framed against the Judge upon completion of its inquiry under section 4(2) of the Act.

This reflects that the committee may proceed to place its findings on record in the public domain(as happened in the case of Justice(Retd.) Soumitra Sen[11], which will be explained later in the article) as mandated by the stated section. After all, it was constituted to investigate alleged illegal acts committed during judgeship, much like an inquiry against a government officer does not simply end with retirement if misconduct during service is alleged.

Yet, whether this argument and status can be extended to constitutional posts such as the High Court judges, where a distinct statute already governs the process, remains uncertain. The position will only become clear once further updates on the inquiry emerge.

Also, another point that favours this line of argument is the interesting case that happened during the impeachment process of the then Justice P.D. Dinakaran. The apex court ruled against the petitioner in Justice P.D. Dinakaran v. Hon’ble Judges Inquiry Committee & Ors., Writ Petition (Civil) No. 217 of 2011[12], rejecting the contentions raised by the petitioners. Interestingly, the verdict of this case came after he resigned, implying the matter did not become infructuous upon resignation. Though later on, the then Rajya Sabha Chairman, Shri Hamid Ansari, dissolved the committee inquiring into this matter.

Whereas, the other contention can be that the whole basis of the inquiry is to ascertain whether the allegations levied against a sitting Judge hold any truth, which in this case is yet to be decided by the committee. Also, the inquiry committee is only set up to remove the judge. A resigned Judge cannot be removed, given that resignation of such nature is governed by the Gopal Chandra(supra).

In this case, he ceased to hold office from the date on which he tendered his resignation, and here the executive entered the fray. This manoeuvre of not acknowledging the resignation(since, by way of Gopal Chandra (supra), acceptance is not required) through the President to continue to have the basis of inquiry committee under the act intact, in order to facilitate what could be seen as a morally right step, has overreached the executive’s constitutionally stated objective along with the boundaries laid down by the apex court in Gopal Chandra (supra).

Here, not only has the spirit been ignored, but the letter of the law is being deliberately violated as well. The Judgeship of any Judge is not dependent upon the executive discretion. The executive’s role in matters of judicial vacancy and removal is largely procedural and ceremonial, including in cases of impeachment, where the Legislative wing exercises its constitutionally stated functions, and not the executive, to ensure that judicial independence remains intact. Here by hindering the formal acknowledgement of the resignation amounts to a grave constitutional overreach by the executive wing.

Here, the author is not defending the allegations levied against the Judge, but the principles of natural justice must also be applicable to this case as well, including “The accused is presumed innocent until proven guilty.”

Here, it is worth reminding the reader that the in‑house inquiry committee constituted by the then C.J.I. Sanjiv Khanna, comprising JJ. Sheel Nagu (C.J. of the High Court of Punjab and Haryana), JJ. G.S. Sandhawalia (C.J. of the High Court of Himachal Pradesh), and JJ. Anu Sivaraman (Judge of the High Court of Karnataka), was purely administrative in character and cannot be a basis either for initiating criminal proceedings after a judge’s demitting office or for commencing impeachment proceedings during tenure under the Constitution.

The Veeraswami Protection

Here, it is important to understand the criminal prosecution protection offered to Judges through the K. Veeraswami v. Union of India (1991) 3 SCC 655[13]. The apex court ruled that no First Information Report(FIR) can be registered against any sitting High Court or Supreme Court judge without prior approval from the Chief Justice of India. The other side of the argument in this scenario is that even if the committee finds the concerned judge guilty, accepting his resignation still allows a separate investigation without the protection offered by K. Veeraswami (supra).

The executive can still initiate a separate investigation against the concerned judge, as he no longer enjoys the protection offered by K. Veeraswami(supra). This also settles any executive doubt about whether an investigation remains possible after the acknowledgement of the resignation. Perhaps the only reason that such an option was not considered by the executive is that, after leaving the judgeship by resignation, the concerned judge, having resigned, would retain retirement benefits on a par with other judges.

It may be argued that the executive may have been reluctant to allow this to be reflected before the public under the Government’s rule. Yet it must be remembered that the Government governs citizens through the Constitution, not Judges through self‑defined moral spectrums.

As witnessed in several past cases, where the Judges facing impeachment proceedings resigned just before their final conclusion to avoid impeachment and save retirement benefits. The case of Justice(retd.) Soumitra Sen affirms this. After the Rajya Sabha passed the removal motion, and before the Lok Sabha could vote for the same, the judge resigned, making the whole process redundant.

Yet the inquiry committee continued with its process and subsequently published the report in the public domain[14]. Through an RTI in January 2012, it became clear that both of them (Justices (Retd.) P D Dinakaran and Soumitra Sen) are enjoying their entitled retirement benefits [15]. The dichotomy in the legal positions taken by the law ministry can be well explained by another example of the same case of Justice( Retd.) P.D. Dinakaran.

After tendering his resignation one day before the inquiry committee was about to start its inquiry, the judge on 04.08.2011 sought to revoke the resignation, but the concerned ministry rejected this contention, affirming what was established in Gopal Chandra (supra) [16].

Conclusion

Though the concerned judge ceased to be a judge from the date he tendered his resignation as per the principle established by the apex court in Gopal Chand Mishra (supra), yet the executive overreach by not acknowledging such resignation to further do what they think of as “morally right act to do”, raises serious concerns pertaining to the constitutional boundaries of executive discretion.

Though precedent exists for the completion of an Inquiry Committee’s findings following the concerned judge’s resignation, the subsequent initiation of an impeachment motion against a judge who has already demitted office does not fall within the four corners of the law. The grey area concerning powers exercised by the executive in the absence of an explicit constitutional mandate is generating legal complications across domains, as Such ambiguities may create opportunities for constitutional friction and inconsistent institutional practices.

We have recently seen cases of gubernatorial discretion affecting the functioning of elected state governments. Nevertheless, such discretion must come to an end through a legislative process or, if it may warrant, then via a judicial pronouncement.

To those who view this case in isolation, such executive conduct may appear acceptable in isolation, but when viewed holistically, it erodes foundational constitutional principles. Today it’s Justice Yashwant Varma’s case, tomorrow, it can be your personal liberty. “Power tends to corrupt, and absolute power corrupts absolutely”, but unchecked discretion in the hands of the executive, where the constitutional framework is absent, corrupts the entire system.

Note: For the benefit of readers, it is hereby stated that, at the time of publication of this article, the Inquiry Committee has submitted its report to the Lok Sabha Speaker following the concerned judge’s resignation, which in itself is an exceptionally rare occurrence. The report is said to be laid before both houses of parliament in the monsoon session of 2026

Various media reports, along with an official post on platform X by Shri Om Birla, Speaker of the Lok Sabha, indicate the same. However, by the time of publication of this Article, no formal notification has been issued by the Department of Justice in the Ministry of Law acknowledging the acceptance of the resignation tendered by Justice Yashwant Verma.

AUTHOR DETAILS:- OJAS RAI, FIRST YEAR LAW STUDENT AT NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BENGALURU.