Equal Trial for Cognisable Offences: No Exceptions

According to reports in several newspapers, senior advocates Mahesh Jethmalani and Harish Salve have rightly questioned why an FIR was lodged against a former judge of the Delhi High Court only after burnt currency notes were discovered at his residence. The principle is simple: the law must be the same for all. Yet in this case, excuses were advanced that cast serious doubt on the system's transparency.

Consider the hypothetical: if a High Court judge commits murder, can they hide behind judicial immunity? Justice Varma’s case illustrates the problem. Following the cash recovery on March 14, 2025, then CJI Sanjiv Khanna constituted a three-member committee—Justices Sheel Nagu, G.S. Sandhawalia, and Anu Sivaram—to probe the incident. Delhi High Court Chief Justice D.K. Upadhyaya submitted a preliminary report, noting that a fire broke out in the judge’s house while he was in Bhopal. But does physical absence absolve responsibility? If terrorists store an AK-47 in a judge’s residence, intending to kill, can the judge escape liability simply by not being present?

The Supreme Court’s landmark judgment in K. Veeraswami vs Union of India (1991) is deeply flawed. It holds that judges of constitutional courts cannot face criminal prosecution—including the registration of an FIR—without prior permission of the Chief Justice of India. This creates a discriminatory shield unavailable to ordinary citizens. Crime investigation is the domain of experts, and the police should be empowered to act after lodging an FIR, without procedural hurdles that protect a privileged few.

Take another example: MPs and MLAs enjoy immunity for what they say or do inside the House. But if one legislator murders another on the floor of Parliament, can they claim immunity from trial? Clearly not. Immunity provisions were designed to protect legitimate functions, not to shield individuals from accountability for cognisable offences. If loopholes exist that allow such misuse, they must be amended.

True equality before the law demands that every citizen—judge, legislator, or layperson—be held accountable for cognisable offences. Anything less undermines the very foundation of justice.