India’s Parliament must not stage its Cadaver Synod

In January 897 CE, Rome witnessed the strangest trial in the history of the Church. Pope Stephen VI ordered the corpse of his predecessor, Pope Formosus, dug up from its grave. Formosus had been dead for about nine months. His body was dressed in papal vestments and propped upon a throne in the Lateran basilica. A trembling deacon stood beside the corpse and answered questions on its behalf. The dead pope was charged with perjury and with violating canon law. He was, unsurprisingly, found guilty. His election was declared void. His acts were annulled. The three fingers of his right hand, the fingers of consecration, were hacked off. The body was then flung into the Tiber.History remembers this spectacle as the Cadaver Synod. It settled nothing. It disgusted Rome, provoked an insurrection, and Stephen VI himself was imprisoned and strangled within months. Successor popes reburied Formosus with honour and burned the record of the trial. The lesson has endured for centuries. A tribunal that sits in judgment over someone who no longer holds the office it can take away does not do justice. It performs theatre, and the theatre degrades the tribunal more than the accused.An impossible impeachmentIndia’s Parliament now stands at the edge of its own Cadaver Synod. The Lok Sabha Speaker has announced that the report of the inquiry committee constituted under the Judges (Inquiry) Act, 1968, into allegations against Justice Yashwant Varma will be tabled when Parliament reconvenes on July 20. The report was submitted on May 18, 2026. The difficulty is stark. Justice Varma resigned on April 9, 2026, with immediate effect, giving up his official residence, vehicles and amenities. His judicial salary has ceased. He has revived his enrolment with the Bar Council and may resume practice as an advocate. Whatever the Allahabad High Court website may say, the man is no longer a judge in any sense that the Constitution recognises. The question before Parliament is whether it should proceed against a judicial corpse.Begin with first principles. The Constitution treats the conduct of judges as a subject beyond ordinary parliamentary debate. Article 121 forbids any discussion in Parliament of the conduct of a Supreme Court or High Court judge in the discharge of his duties, except upon a motion for an address praying for his removal. The bar is deliberate. The framers knew that a legislature free to debate judicial conduct at will would soon hold judges hostage to majorities. So they permitted one exception — and one alone. Parliament may discuss a judge’s conduct only when it is actually engaged in the solemn business of removing him. The discussion is incidental to removal. It has no independent existence.Removal, in turn, presupposes an office to be vacated. Article 124(4), applied to High Court judges through Article 217(1)(b), speaks of a judge being “removed from his office.” The Judges (Inquiry) Act creates elaborate machinery, a motion, an inquiry committee, a report, an address to the President, all directed to a single constitutional consequence. The Act knows no lesser penalty. It cannot censure, fine or disqualify. It can only remove. Once the judge has already left, the machinery grinds on with nothing to grip.A judge is a constitutional functionaryHas Justice Varma left? The Supreme Court answered that question nearly half a century ago. In Union Of India vs Shri Gopal Chandra Misra And Ors. (1978), a Constitution Bench held that a High Court judge’s resignation under the proviso to Article 217 is a unilateral constitutional act. It requires no acceptance by the President or anyone else. A judge who resigns with immediate effect severs the constitutional link at the moment of his own choosing. A judge is not a government servant whose resignation lies on some desk awaiting orders. He is a constitutional functionary who holds office by the Constitution and may relinquish it by the Constitution. Justice Varma’s letter said “with immediate effect”. The link snapped on April 9. That his name lingers on a website is an administrative carryover, not a statement of law.Precedent points the same way. Justice P.D. Dinakaran resigned in 2011 while impeachment proceedings were pending; the inquiry committee was dissolved, and no report reached Parliament. When Justice Soumitra Sen resigned (2011) after the Rajya Sabha had actually adopted the removal motion, the proceedings simply ended. Parliament thereafter never took the matter up. In both cases, the institution understood that resignation extinguishes the removal jurisdiction. The Varma committee, unusually, continued its work after his resignation and submitted a sealed report after his resignation. Tabling that report as a formal record may perhaps be defended as closure of the file, but even that is strictly not necessary. The Speaker can just inform Parliament that such a report has been received, but no further action is deemed necessary. Before Parliament proceeds further, members must demand that it be advised by the Attorney General, who must be summoned to the House. Anything beyond tabling would take Parliament into realms that no legislature has gone before.Consider what that territory looks like. If Parliament can proceed to debate and vote upon the removal of a man who is no longer a judge, then the resignation of the judge is no barrier. Neither, logically, is retirement. Nor, indeed, is death. Every safeguard in Article 121 rests on the premise that the discussion serves a live removal. Remove that premise, and a future Parliament could constitute committees against judges who retired a decade earlier, or whose judgments displeased a later majority. It could posthumously arraign a Chief Justice for a verdict delivered in another political era. The special majority requirement would remain, but special majorities have been mustered before and will be again. Judicial independence does not depend on judges being brave on the day of judgment alone. It depends on their knowing that no legislature will hold a synod over their record after they have gone.Close the fileNone of this means that Justice Varma escapes accountability. Impeachment is not punishment. It is the removal of an unfit occupant from a constitutional office, and that purpose stands fully achieved. The office is vacant. If the burnt currency notes found at his residence discloses an offence, the criminal law applies to former judges exactly as it applies to the rest of us. Investigation, prosecution and trial remain open, and are indeed the proper forum for questions of guilt. His pension and terminal benefits raise separate statutory questions that the government may lawfully examine. What Parliament cannot do is dress the corpse in robes and conduct a trial that can end only in removing a man from an office he does not hold.Rome eventually understood this. Pope Theodore II reinstated the ordinations of Formosus and reburied him with honour in St. Peter’s Basilica. Pope John IX condemned the synod and burned its acts. The Church survived Formosus. It nearly did not survive the trial of his corpse. Parliament should table the report, note it, and close the file. Let us not dig up old corpses just for the stink.Sanjay Hegde is a Senior Advocate of the Supreme Court of India