How would you feel if a sitting High Court judge implicated in a large-scale corruption scandal were allowed to walk away unscathed and receive the same benefits as an honest judge? Sounds unreasonable, but this is exactly how our constitutional provisions deal with misconduct in the Indian judiciary.

In 2025, impeachment proceedings were initiated against Justice Varma, a sitting judge of the Allahabad High Court, after a large quantity of burnt currency notes were reportedly discovered at his residence. This raises strong questions about the stability and effectiveness of the impeachment process and the post-resignation status of judges facing impeachment. After months of parliamentary proceedings, Justice Varma submitted his resignation, and he will now walk away with all post-retirement benefits aimed at rewarding honest service.

So we must ask, if resignation ends accountability, who exactly are we protecting – the Judiciary or the Judge?

This article attempts to analyze the constitutional silence on post-resignation accountability in judicial misconduct in four parts. Firstly, it explains the loophole within the current constitutional and pension framework that allows judges to evade meaningful consequences when facing impeachment proceedings. Secondly, it illustrates this loophole through the Soumitra Sen case alongside the concluded proceedings against Justice Varma and examines the institutional dangers posed by this framework. Thirdly, it undertakes a comparative analysis of disciplinary frameworks in France and the United Kingdom to examine how other jurisdictions address the effect of resignation on judicial accountability. Fourthly, it proposes a reform, allowing continuation of proceedings even after resignation for the limited purpose of determining eligibility for post-retirement benefits. Finally, the article concludes by reflecting on the implications of such reform for judicial accountability in India.

The Constitutional Pension Loophole

The pension laws for judges and their interaction with constitutional provisions in the Supreme Court and the High Courts are plagued with a loophole, dragging down judicial accountability. Article 124(4) and Article 217, read with Article 218 of the Constitution lay down the framework for the removal of a judge of the Supreme Court or High Court on the grounds of proved misbehaviour or incapacity.

Removal proceedings begin when a notice of motion signed by a specific number of Members of Parliament [“MPs”] is introduced in either House, and admitted by the Speaker or Chairperson. The Speaker or Chairperson then constitutes an inquiry committee, under sections 3, 4 and 6 of the Judges (Inquiry) Act, 1968 [“JIA”].  This committee has the powers and functions of a quasi-judicial body, and on finding the judge guilty of misbehaviour or incapacity, the motion is taken up for debate and voting in the House where it was introduced.  Thereafter, the Constitution mandates that the motion must be passed by a special majority in both Houses of Parliament, after which an address is presented to the President, who issues the order for removal.

If this process ends up concluding with a judge being removed, the judge becomes ineligible for post-retirement benefits like a lifelong pension, gratuity, reimbursed medical care and housing-related privileges under the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958 or High Court Judges (Salaries and Conditions of Service) Act, 1954 [“Judges Pension Acts”]. Section 13 and 14 of the High Court Judges Act, 1954 and the corresponding provision in the 1958 Act, state that pension shall be granted to a judge “on his retirement”. Since, removal is not considered a form of retirement,  it automatically disqualifies them from availing these benefits.

However, there exists one method which has been abused by multiple judges who underwent impeachment proceedings to completely escape this disqualification, resigning before impeachment concludes. In the Pushpa w/o Virendra Ganediwala v. Bombay High Court judgment, Bombay High Court held that resignation is a voluntary cessation of service, and is seen as a form of retirement for the purposes of pensionary benefits.

The process dictating impeachment includes multiple checks and balances, making it very rigorous so as to reduce arbitrary proceedings. Concurrently, it is also very exclusive, Articles 124(4) and 217 read with Article 218 along with the sections 3, 4 and 6 of the JIA form the only constitutionally valid mechanism for removal. The Supreme Court in Sub-Committee on Judicial Accountability v. Union of India affirmed that judicial removal is governed by the constitutional impeachment process based on the finding of misbehaviour or incapacity.

Resignation defeats this sole provision, frustrating the constitutional design. Resignation ends service, making the impeachment proceedings impossible as the resignee is no longer a judge. However, the impeachment proceedings and the subsequent investigation terminate, while the judge still receives all benefits. The termination of proceedings in such cases exhibits a procedural impossibility rather than an adjudication on merits, leaving allegations of misconduct completely unaddressed. The Supreme Court in K. Veeraswami v. Union of India affirmed that members of the higher judiciary are not immune from accountability, even within a framework that strongly protects judicial independence. In such cases, accountability ceases to be a necessity and becomes an option exercised at the discretion of the former Justice.

Judges may exploit this loophole, with the only effect being the loss of office and reputational damage, neither of which addresses the misconduct payday. The consequences of this pattern are not merely theoretical, but are historically documented.

When the Loophole Operates

One of the most well-known cases of abusing this loophole is that of Soumitra Sen, former Judge of the Calcutta High Court. In 2009, the Rajya Sabha initiated impeachment proceedings against him, and an investigation under the JIA was commenced. A three-member inquiry committee was formed, which found that he misappropriated funds and misled the court, squarely amounting to misbehaviour under Article 124(4) of the Constitution. The Rajya Sabha voted and passed the motion, however, Justice Sen submitted his resignation right before the Lok Sabha could vote. He resigned before justice could reach him, and was awarded with the benefits any other judge would have received.

This same instance has played out again, this time with Justice Varma. On April 10, 2026, Justice Varma submitted his resignation, and the proceedings terminated instantly. The judge walks away, accountability is extinguished, and all benefits remain intact.

These instances disrespect our constitutional provisions for how they deal with judicial misconduct. All parliamentary proceedings are terminated as soon as the Judge submits a resignation letter, and all the time and resources spent on investigation remain as mere proof of a very apparent constitutional deficiency. The Board of Revenue v. Parameswaran Nair clearly states that pension is neither bounty nor a matter of grace depending on the will of the employer, it is supposed to be provided on the basis of good conduct and hard work. Yet, judges of the constitutional courts walk away with pensions after acts of gross misconduct.

The C. Ravichandran Iyer v. Justice A.M. Bhattacharjee case holds that public confidence in the Judiciary is essential for the rule of law. But when the common citizen sees a High Court judge play with huge amounts of illegitimate money, and walk away with benefits, it erodes any and all sense of accountability the public believes judges hold. Stringent changes are required before the history of continued shattering of trust becomes too heavy to carry. This requires an analysis of frameworks from jurisdictions that already have developed mechanisms to address similar issues.

Comparative Perspectives from France and the United Kingdom

In several established constitutional systems, disciplinary bodies retain jurisdiction over judges even after they resign or retire during misconduct proceedings, France and the United Kingdom [“UK”] serve as illustrative examples. In France, under Articles 64 and 65 of the Constitution of 1958, disciplinary proceedings against judges are undertaken by the Conseil Supérieur de la Magistrature [“CSM”]. Proceedings may be initiated by the Minister of Justice or by the heads of courts, following which the matter is investigated by the formation disciplinaire, a quasi-judicial body, of the CSM. Upon completion of the proceedings, the CSM determines whether misconduct has occurred and may impose disciplinary sanctions. There exist parallels between this and the Indian procedure, as both systems employ a formal mechanism of inquiry and determination of misconduct through specific institutional bodies. However, there exists one fundamental difference: the CSM retains jurisdiction even after a judge resigns or retires, and the proceedings do not automatically terminate. The determination of misconduct may still be recorded and published, and possible sanctions affecting post-retirement benefits may be imposed.

Similarly, in the United Kingdom, under Sections 106, 108 and 115 of the Constitutional Reform Act 2005, investigations undertaken by the Judicial Conduct Investigations Office [“JCIO”] may continue after the resignation or retirement of a judge. The JCIO conducts a preliminary screening to determine if the misconduct is plausibly alleged. If the complaint passes the screening, a formal investigation is initiated where evidence is collected and responses are sought from the judge. The final determination of misconduct and the appropriate sanction rests with the Lord Chancellor and the Lord Chief Justice jointly. The UK also exhibits parallels with the Indian procedure: it uses a structured process involving complaint, investigation, and a formal determination of misconduct. On similar lines as France, even after resignation during the course of the investigation, the disciplinary process does not automatically terminate, and investigations may be carried out under Regulation 13 of the Judicial Discipline (Prescribed Procedures) Regulations, 2023.

In India, resignation ends the process itself, whereas in jurisdictions such as France and the United Kingdom, it merely ends the tenure, and not the accountability. These jurisdictions prevent benefits from being enjoyed without scrutiny. On the contrary, India’s framework extinguishes accountability the moment a judge resigns, allowing the very evasion that other jurisdictions have designed their disciplinary mechanisms to prevent.

Reforming Post-Resignation Accountability

The comparative analysis above reveals the need for a mechanism that allows for a conclusive determination of misconduct or incapacity, in order to determine the status of post-retirement benefits.

This article proposes the continuation of the inquiry committee formed under the JIA even after the judge resigns, given that the Speaker or the Chairperson admits the motion after the minimum required MPs sign the notice of motion. This inquiry committee will continue for the limited purpose of determining whether any substantive misconduct exists and whether statutory conditions surrounding pensionary entitlements stand fulfilled. Once this is determined, the judge will be found ineligible for pensionary benefits under the Judges Pension Acts.

Fixing the trigger at this stage ensures that the loophole cannot be exploited through strategic resignation. When the required number of MPs sign the notice, it represents serious parliamentary concern for the possibility of judicial misconduct. The Speaker or Chairperson admitting the motion makes sure that the motion is not unfounded. Placing the trigger point here will make sure that the balance between mitigating the loophole, and preventing frivolous investigations is preserved. As a complementary measure, the Judges Pension Acts must be amended to explicitly disqualify a judge from receiving pension if they resign after the aforementioned stage has passed.

The reform does not require a constitutional amendment. The Constitution governs removal from office, while the proposed reform only deals with post-retirement benefits, and therefore does not result in a conflict with Articles 124(4) and 218. It only requires specific amendments in the JIA and the Judges Pension Acts, to allow continuation of proceedings and to disqualify pension, respectively.

Judicial independence, while important, is not absolute, as recognized in Union of India v. Sankalchand Himatlal Sheth. The Supreme Court in Supreme Court Advocates-on-Record Association v. Union of India further highlighted that judicial independence must be balanced with mechanisms of accountability. The proposed reform does not seek to remove judges or interfere during their tenure; it operates solely after resignation. Its purpose does not lie in punishment, but merely to determine pension eligibility. Judicial independence protects decision-making in office; it does not justify avoiding consequences after surrendering office.

The reforms are not entirely radical in the Indian context and already exist in the disciplinary proceedings in service law. In UCO Bank v. Rajinder Lal Capoor, the Supreme Court held that disciplinary proceedings initiated while an employee is in service may continue even after retirement, and may determine entitlement to pensionary and other retiral benefits. Since resignation is equivalent to retirement for pension purposes, Indian law already recognizes this principle of continuing disciplinary proceedings post-separation in a different legal sphere.

The Department of Justice has also acknowledged this loophole. A 2012 RTI Reply clearly stated that there is constitutional or statutory provisions restricting the judges from their entitlement to post-retirement benefits, even in cases of pre-mature resignation.

Therefore, the absence of such a mechanism in the context of judicial accountability is not due to lack of a legal recognition, but a failure to apply an already accepted principle to a context where its application is most necessary.

Conclusion

When a judge facing serious allegations of misconduct can simply resign and walk away with the same honors and benefits meant to reward honest service, that trust begins to erode. If the constitutional framework allows investigations to vanish the moment a resignation letter is submitted, the system begins protecting the individual judge from post-retirement consequences.

The reform proposed here directly addresses that imbalance. Allowing the inquiry committee to continue its work even after resignation does not undermine judicial independence, nor does it create a new form of punitive action. It simply ensures that allegations of misconduct are actually examined before benefits are granted. Accountability in such cases is not about targeting judges, but about preserving the legitimacy of the judiciary as a whole. A system that allows resignation to terminate scrutiny does not merely fail to punish misconduct, but risks normalising its evasion. In the end, the question is not whether the judge needs protection from external pressures, but whether the Indian judicial system can afford a mechanism where a resignation is enough to drive the search for truth to an untimely end.