RS passes Sen impeachment motion and questions how judges appoint themselves
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.
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.
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