Why is it so hard to budge a judge?

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

INDIAN EXPRESS 

 It was assumed by our Constitution makers that once a judicial committee finds a judge guilty of misbehaviour, Parliament would automatically endorse the finding of the judicial committee and pass the appropriate address to the president with the requisite majority. That was the assumption underlying this provision. Unfortunately, Parliament did not build up a convention on these lines. Therefore, the procedure became difficult and doubtful.

In former Supreme Court judge Justice V. Ramaswami’s case in 1993, the ruling party, the Congress under P.V. Narasimha Rao, did not issue a whip to the members and in fact, told them to abstain from the vote. Ramawami’s supporters prevailed on the party, and this abstention by the Congress defeated the motion, which set a very bad precedent, and earned a bad name for the party. That event has encouraged some judges to take a very rigid stand: not to resign even when serious allegations are made against them by responsible persons. It has had a negative impact on the minds of these people, as errant judges assume nothing will happen to them since impeachment is such a difficult procedure. This has been a serious setback to the independence and the credibility of the judiciary.

Thereafter, there have been a number of cases involving judges of against whom serious allegations of misconduct have been made. There have been cases where criminal prosecution was also initiated. Shamit Mukherjee of the Delhi high court and Nirmal Yadav of the Punjab and Haryana high court are examples. There have also been some cases where the Chief Justice of India did not give his permission to proceed; such permission is required in law. K. Veeraswamy, a former chief justice of the Madras high court, was prosecuted for having disproportionate assets. The real point is that because impeachment is difficult and uncertain, some judges behave irresponsibly.

In the Justice Soumitra Sen case currently before Parliament, a committee was set up, consisting of a sitting judge of the Supreme Court, Justice B. Sudershan Reddy, an eminent lawyer like F.S. Nariman, an eminent judge like Chief Justice Mukul Mudgal of the Punjab and Haryana high court. That committee found this gentleman guilty of retaining the monies of a client that he received as an advocate-receiver, and of holding on to that money in his account even after becoming a judge of the high court. He returned the money only later, after the high court ordered him to do so. This was considered to be misbehaviour on the part of the judge.

Instead of accepting the findings given by an impartial committee, Sen has chosen to challenge the findings in Parliament. This isn’t a healthy development. The Rajya Sabha has since voted for his impeachment. Now it all depends on the vote in the Lok Sabha. According to me, in principle, it is not a wise decision to make MPs the custodians of judicial ethics and judicial conduct. If they are to apply their own standards of probity to the misbehaviour of judges, they might find it difficult to find him guilty of serious misbehaviour warranting removal. Therefore, there should be another method for easier removal of a judge found to be guilty of doubtful integrity.

I suggest an amendment of the Constitution to incorporate a provision permitting the immediate removal of a judge who, in the opinion of the collegium of the Supreme Court is a person of doubtful integrity and doesn’t deserve to remain in office. He can be paid some compensation in lieu of the forsaking of service, instead of having to suffer him on the bench with doubts about his honesty in the minds of the public. The judicial system cannot afford to have such black sheep on its rolls.

If such a provision is made, it can be applied to public servants found to be of doubtful integrity. Proving corruption in a court of law is difficult because the bribe-giver and -receiver will thwart all attempts to prosecute them. The same problem arises with departmental enquiries. Even in those rare cases where prosecution succeeds, it takes a long time and by the time the decision comes, the judiciary would have suffered an irreparable loss. On the other hand, if such people are removed forthwith, on payment of some compensation, the system would be much healthier and will enjoy greater credibility.

Those inclined to accept gratification will also be under check for fear of removal forthwith if discovered. It will have a salutary effect even on the existing judges and will instill fear in their minds, so that they do not resort to corrupt ways, and remain honest. Of all the institutions, the judiciary especially cannot afford to have corrupt persons in its ranks. Therefore I strongly recommend such a provision being made in the Constitution. In that case, the impeachment procedure would become redundant.

There is a judicial accountability bill in the works, but well intentioned as it is, it does not go far enough, and does not have adequate teeth to deal with the problem effectively. There should be a provision for the suspension of a judge when complaints against him are being investigated. At the same time, we must take care to ensure that disgruntled litigants do not level false accusations against judges who might have decided against them. We have to protect judges from such baseless complaints. The judicial accountability bill will have the unintended effect of allowing false complaints to be made, which is not conducive to the independence of the judiciary. There is no provision for the speedy removal of an errant judge.

The Supreme Court has been trying an in-house procedure, but it is not a transparent one. There is a feeling that cases are pushed under the carpet for fear of adverse publicity. Therefore, there is a clear need for a transparent mechanism of accountability for judges. Even in the matter of declaration of assets in public, there was hesitation within the judiciary. It is necessary to ensure transparency in these matters in order to sustain the confidence of the people in the system.

The writer is a senior advocate in the Supreme Court, and an expert in constitutional law

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RS passes Sen impeachment motion and questions how judges appoint themselves

Parliament building in New Delhi (Sansad Bhava...

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INDIAN EXPRESS

The Rajya Sabha today passed by an overwhelming majority a motion to impeach Calcutta High Court judge Justice Soumitra Sen on charges of misappropriation of large sums of money and making false statements and misrepresenting facts of that misappropriation. And, in the process, the Elders used the opportunity to pose a question to the higher judiciary: how did somebody like Sen, whose conduct as a lawyer was highly questionable, become a judge in the first place?

That question wasn’t purely rhetorical — speaker after speaker during the four-hour debate got up to question the current collegium system of appointment. And many MPs, cutting across party lines, criticised what they called the growing tendency of the higher judiciary to step into the domain of the executive and the legislature.

While 189 members voted in favour of the motion to impeach the 53-year-old judge, 17 members, including 16 from the BSP, voted against it. The BSP was the only party that came out in support of the judge.

Contacted after the vote, Sen told The Indian Express: “I am extremely disappointed… There is no question of my resigning. I shall fight till the end and explore all legal remedies. I am honest on this issue and will continue to fight my case.”

Not many had bought this case. Continuing from where he left yesterday, Leader of the Opposition in the Rajya Sabha Arun Jaitley said that the time had come to revisit the procedure for appointment of judges, strongly favouring a National Judicial Commission (NJC) to replace the collegium system. “The system of judges alone appointing judges must now change. India needs a National Judicial Commission to appoint judges,” Jaitley said. He said the NJC should comprise representatives of the judiciary and executive, as well as prominent citizens.

“Both the pre-1993 and the post-1993 system had several handicaps. The best in this country are not willing to become judges. We have to seriously consider why… We should seriously consider a system which is being debated about setting up a National Judicial Commission… Public interest has to be protected in the matter of appointment of competent judges, in the matter of appointment of judges who are men of integrity, men of scholarship. Not only this, the criteria for appointment today does not exist. Is it today the discretion of the collegium? Collegium is also a system of sharing the spoils. When the High Courts recommend, members of the collegium share the spoils,” he said.

Talking about judicial over-reach, Jaitley said: “Separation of powers requires that every institution works in its own spheres. And if every institution works in its own spheres, it has to lay down the lakshman rekha of its own jurisdiction..And I must candidly confess that this attempt to encroach upon the lakshman rekha is neither coming from governments of the day in the Centre or the States nor is it coming from the Executive or the Legislature. Some serious sidestepping is coming from the judicial institution itself.”

He was also critical of the “increased trend” of the Executive giving jobs to judges after their retirement, saying, “There is a possibility of retirement-eve judgments getting influenced in search of post-retirement jobs…this is a serious threat to judicial independence.” Jaitley also reiterated that Sen had tried to mislead the House by presenting “serious falsehood” about the facts of his case in the House yesterday.

Taking a dig at the recent incidence of the apex court taking an ideological stand, Jaitley said, “Courts cannot say that this is neoliberalism which is creating problems. Courts cannot have an ideology. The only ideology that courts can have is commitment to the rule of law and what law is made by Parliament. Courts cannot tell this to the Government.”

Congress MP E M S Natchiappan said he “felt sorry” the way in which a serving judge had attacked the judiciary, especially a former CJI, in words that were never ever used in Parliament.

Springing a surprise, BSP MP Satish Chandra Mishra, who opposed the motion, said: “The findings have said there has only been diversion of funds and not misappropriation and secondly the finding of a single judge was dismissed by a division bench.” Therefore, he said, it could not be the ground for his removal.

In his address, noted lawyer Ram Jethmalani (BJP) launched a frontal attack on Sen, urging members not to be “misled” by his eloquence, which, he said, had nothing to do with morals. “This man did not deserve to be a judge. Not only should this judge go, other judges who do such things should not remain for even one more day…Let us set a good precedent today so that judges with similar bent of mind get a message that they cannot get away with such things.”

Jethmalani added that by paying the Rs 52 lakh, Justice Sen had bought for himself a reprieve from possible prosecution for criminal breach of trust that carries a prison term of 10 years to life.

CPM’s Sitaram Yechury, who moved the motions against Sen, also favoured setting up of a judicial commission.

D Raja (CPI) stressed the need for a judicial system based on probity and integrity. “A National Judicial Commission is required so that there could be accountability of judges,” he said, adding the nation is agitated over corruption in high places.

Tiruchi Siva (DMK) and Bharatkumar Raut (Shiv Sena) spoke on the need for judicial reforms and changes in the system to appoint judges.

Rajneeti Prasad (RJD) said the appointment system has to change and unless this happens, corruption in judiciary will remain, there will always be some appointments based on personal — rather than professional — considerations.

“When a peon is being appointed, he is interviewed. Set up a judicial commission…This way, good judges will be appointed. Otherwise, only children and kin of judges will become judges,” Prasad asserted.

Kumar Deepak Das (AGP) and H K Dua (Nom) also made similar demands. Ravi Shankar Prasad (BJP) said though the judiciary’s fight against corruption was welcome, the trend of judiciary “taking away power by appointing committees — MCD should work like this; this committee should work like this” was wrong. “May be, the authority is not functioning properly, but for that you are not the authority. Let the democratic process, the rule of the law and parliamentary accountability set right the course,” he said.

Immediately after the motion was passed, Prime Minister Manmohan Singh, who remained present in the House and voted, walked up to Yechury and Jaitley and congratulated them on the approval of the motion.

Now that the RS has passed the motion, the matter will go to the Lok Sabha, where, once again, Sen will get an opportunity to present his defence. However, the date when the Lok Sabha will debate the motion, will be decided early next week by the Business Advisory Committee.

http://www.indianexpress.com/news/rs-passes-sen-impeachment-motion-and-questions-how-judges-appoint-themselves/834089/0

Judges must be beyond all suspicion

Arun Jaitley

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While speaking on the motion for the removal of Justice Soumitra Sen, a Judge of the Calcutta High Court, Leader of Opposition in the Rajya Sabha, Arun Jaitley, highlighted that those who occupy high offices must live through the scrutiny of highest standards of probity. Excerpts from his speech:

This is a sad but historic moment in the Indian democracy. We have assembled to decide the fate of a man who decided the fate of others. This political house is here to perform a judicial function. We have heard a detailed presentation in the defence of the Judge sought to be impeached.

The power of removal/impeachment of a Judge of the Supreme Court or the High Court is a power which is to be used in the rarest of the rare cases. We invoke this jurisdiction to remove a man and save the dignity of the office, which is paramount.

Judges no longer live in ivory towers. Today, they live in glasshouses where the bar, litigants, public and the media watch them from close proximity. But then we have all to exercise utmost restraint. Judges cannot defend themselves against unfounded allegations. They must neither be summarily tried nor be thrown to the wolves. A Judge, under inquiry, must be candid. He cannot plead only technical defences. He cannot be too clever by half. He cannot invoke a right to silence like an ordinary accused, and shy away from speaking the truth.

In this case, when the Judge under inquiry says that his offence must be proved ‘to the hilt’ or ‘proved beyond reasonable doubt’ , he relies on technicalities rather than substance. A Judge is like Caesar’s wife. He must be beyond suspicion. Those who occupy high offices must live through the scrutiny of highest standards of probity. A Judge must be unsuspectable.

Proven misconduct?

Justice Sen is guilty of a continued ‘proven misbehavior’ from his days as a lawyer when he was appointed as a Receiver; and this continued well in to his tenure as a Judge of the Calcutta High Court. He never rendered the accounts as directed by the courts both as a lawyer and as Judge. He created encumbrances, by withdrawing monies, which were in his custody as a Receiver of the court. He transferred these monies unauthorizedly to persons not authorized to receive them. He withdrew the monies himself. He transferred the money to another account, which he maintained as a special officer in Calcutta Fans case. Even after his elevation as Judge in 2003, he continued the misappropriation of monies. His case squarely falling under Section 403 of the IPC of temporary misappropriation of monies is a criminal offence. In any case, he continued to retain these monies till 2006. He only returned the monies under the coercive order of the court and not otherwise.

During his tenure as Judge, he put a false defence before the single Judge, the Division Bench, the in-house inquiry committee and the impeachment inquiry that he had invested these monies in a company which went into liquidation. The liquidated company had nothing to do with these monies. The Division Bench judgment is a judgment with consent of all parties. It does not lay down the law. It is a judgment in personam, which is binding only on the parties, and not a judgment in rem, which binds the rest of the world. It does not, in any way, restrain the jurisdiction of this House under Article 217 from examining a case of ‘proven misconduct’.

Justice Soumitra Sen’s conduct as a litigant was unfortunate. He led no evidence. He hardly cross-examined witnesses. He claimed the right of silence. He then misrepresented and put up a false defence. He has been held guilty, both by the in-house committee appointed by the Chief Justice of India, and also by the committee appointed by the Chairman, Rajya Sabha. He is conclusively guilty of an offence. A case of ‘proven misconduct’ is made out against him. A Judge has to lead by example. A Judge cannot rely on technicalities and try to escape the rigours of law. Litigants cannot be Judged by a Judge, who himself is stigmatized. The defence of Justice Sen has thus to be rejected.

Who must appoint the Judges?

The Constitution of India empowers the government, in consultation with the Chief Justice of India to appoint Judges. Since the government has the last word, the independence of judiciary was being seriously compromised. The theory of social philosophy of Judges was propounded in the early 1970s in order to provide for a ‘Committed Judiciary‘ in India. The failure of a section of the judiciary during the Emergency and thereafter compelled the revisiting of the debate as to who should have the last word in the appointment of the Judges. The Supreme Court in 1982, by a narrow majority of 4 against 3, maintained the status quo. This enabled further politicization in matters of judicial appointments. In 1993, the balance of power shifted. The advice of the Chief Justice of India became binding upon the government. In 1998, the authority of the Chief Justice of India was diluted to provide for a collegium to appoint Judges.

The quality of judicial appointments, the best available not willing to become Judges, has not improved. Both the earlier systems have not succeeded. Thus the system of Judges alone appointing Judges must now change. India needs a National Judicial Commission to appoint Judges. It must be a combination of members of the judiciary, the executive and citizens’ representatives in public interest who must collectively appoint Judges.

The more important question is what should be the criteria on which Judges should be appointed. Today, Judges perform the Executive function of appointment in an unguided manner. The discretion of the National Judicial Commission, if it is so appointed, or the collegium as at present must now be restricted and regulated by the provisions of the Article 14 of the Constitution of India. There must be objective criteria introduced with regard to the qualification of persons under consideration, their academic credentials, their experience at the bar, their quality of judgments if they belong to the judicial institutions, details of cases argued, details of judgments reported with regard to the cases the lawyer has argued, the number of juniors trained, academic papers authored, amount of income tax paid, and the reputation and integrity etc. Unless these objective criteria enable a candidate to cross the threshold, he cannot enter the zone of consideration.

At present we have an in-house mechanism, which judges the Judges. It is an extra constitutional mechanism which has not succeeded. The process of impeachment is a near impossibility. The National Judicial Commission thus, in matters of judicial discipline, should be the Judicial Lok Pal.

Threats to judicial independence

The appointment of political activists as Judges at times has compromised the judicial independence. The lack of integrity can be on account of several reasons, which influence the administration of justice. These include judgments delivered because of collateral reasons and prejudices on account of religion, caste or personal reasons.

There is an increased trend of the Executive distributing jobs to Judges post retirement. This has seriously compromised the independence of judiciary. In recent times , the cases of Judges delivering judgments in politically sensitive cases on the eve of retirement and getting jobs the very next day from the Government is on the rise. I believe that no Judge should be entitled to a job after retirement. If the age of retirement is sought to be increased in the case of High Courts, as per the existing Bill pending, the same must be accompanied by a constitutional amendment, which prohibits jobs after retirement. The Judge strength of High Courts can be increased and all judicial tribunals must be manned by serving Judges.

Separation of powers

The separation of powers is one the most valuable principles of the Indian democracy. Separation of powers is infringed upon when the Legislature or the Executive encroach upon the Judiciary’s space or Vice Versa. It is only judicial statesmanship which prevents a confrontation between the institutions. Of late, with the weakening of the political Executive and serious division in the polity, the tendency of the judicial institution to encroach upon the Legislative or Executive space has increased. It has been argued that if the Executive does not perform its job, the Judges have to step in. This is a dangerous argument. By the same logic, if the judiciary does not perform its job, can somebody else step in? The answer is NO in both the situations. Recent comments and pronouncements with regard to whether India should have liberalized economy or regulated economy do not fall within the judicial space. How terror is to be fought is in the Executive domain. What should be the land acquisition policy, is a concern which belongs to the Parliament and the Executive. Whether a Pakistani prisoner in India should be released or exchanged for Indian prisoners in Pakistan, is to be determined by the Government and not the Supreme Court. Whether FDI is needed in the economy or not is an area that belongs to be Executive or Parliament. Unfortunately, recent aberrations in the separation of powers, have all been on account of judicial activism. Activism and restraint are two sides of the same coin. Each institution must respect the Lakshman Rekha.

A breach of trust

Finally Sir, we have before us a case of ‘proven misbehaviour’ by Justice Soumitra Sen. It is not that his misbehaviour is restricted to his tenure as a lawyer. There is a thread of continuity in his ‘proven misbehaviour’. He became a Receiver of a court property. He opened a bank account in his own name. He was a Trustee of somebody else’s fund. He misappropriated the funds. He put them for an alternative use. This he did as a lawyer.

In 2003, when he became a Judge, he continued the misappropriation. He did not ask the court to discharge him. When the court issued him notice, he did not respond. When the court passed strong strictures against him, he under coercive direction of the court returned the money in 2006 along with interest. He mis-representated to the court that he had invested the money in a private company and that the money got lost when the company became insolvent. No part of this money was ever invested in a private company. When the Chief Justice of India called him for an explanation, he moved the Division Bench through his mother and got an order of the single Judge set aside on the basis of concessions made by the advocates. The order shows the members of the bar not in good light. Before the in-house committee, appointed by the CJI, he persisted with his false defence. The committee found him guilty. Before the Parliamentary Committee, he did not volunteer the entire evidence. He resorted to technicalities and silence. He resorted to false defence.

His acts, both as a lawyer and a Judge, had all the ingredients of culpability of breach of trust. He misappropriated the money and he put up a false defence. He was not truthful or candid. This is a case of ‘proven misbehaviour’.

I, therefore, support the address to be made to the President, that Justice Soumitra Sen be removed from office as a Judge of the Calcutta High Court. He is undeserving to occupy that office. We recommend the removal of an undeserving man to save the dignity of the office.

http://www.tribuneindia.com/2011/20110819/edit.htm#6