Judges Impeachment Procedure and Justice Soumitra Sen’s CaseDECEMBER 11, 2011

tags: Backgrounders, Current Affairs 2011-12, Indian Current Affairs 2011-12

What is the legal framework regarding impeachment of judges?

The Constitution has measures to ensure the independence of the judiciary from executive action.  This helps judges give judicial decisions in a free and fair manner without any inducements.

The Constitution also provides checks against misbehaviour by judges.  Article 124 (4) states that“A judge of a Supreme Court shall not be removed from his office except by an order of the President passed after an address by each house of parliament supported by a majority of the total membership of that House and by a majority  of not less than two-thirds of the members of the House present and voting has to be presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity”

Similar provisions exist in Article 217 clause 1 (b) for the removal of Judge of a High Court.

 The detailed process is laid down in the Judges (Inquiry) Act, 1968.

Who decides if a Judge should be impeached?

As per the Judges Inquiry Act, 1968, a complaint against a Judge has to be

made through a resolution either by 100 members of the Lok Sabha or 50

Rajya Sabha members. After the MPs submit a duly signed motion to this

effect to their respective presiding officers — Chairman of the Rajya Sabha

or Speaker of the Lok Sabha — the presiding officer constitutes a three-

member committee comprising two Judges — one from the Supreme Court

and one Chief Justice of a High Court if the complaint is against a HC Judge;

and two Supreme Court Judges if the complaint is against a sitting Judge of

the apex court — and a jurist to probe the complaint and determine if it is a

case fit for initiating the process of impeachment.

This team can involve any independent agency, either from the government

or the private sector, to investigate the charges, before making a

recommendation to the House. Thereafter, if the committee has concluded

that impeachment proceedings be launched, the matter is debated in both

Houses of Parliament. The Judge who is facing impeachment is also given

the opportunity to rebut the charges, either in person or through his

representative. However, the entire process — debate onwards — has to be

completed within a single session of the House, failing which the motion is

deemed dropped and can only be taken up if the entire process is repeated

afresh in any subsequent session.

How is the motion initiated?  What is the process after that?

A motion has to be moved by either 100 Lok Sabha members of Parliament or 50 Rajya Sabha MPs.  If the motion is admitted, the Speaker of Lok Sabha or Chairman of Rajya Sabha constitutes an inquiry committee.

The committee has three members: a Supreme Court judge, a High Court Chief Justice, and an eminent jurist.  The Committee frames charges and asks the judge to give a written response.

The judge also has the right to examine witnesses.  After the inquiry, the committee determines whether the charges are valid or not.  It then submits its report.

What happens then?

If the inquiry committee finds that the judge is not guilty, then there is no further action.  If they find him guilty, then the House of Parliament which initiated the motion may consider continuing with the motion.

The motion is debated.  The judge (or his representative) has the right to represent his case.  After that, the motion is voted upon.  If there is two-thirds support of

those voting, and majority support of the total strength of the House, it is considered to have passed.  The process is then repeated in the other House.

After that, the Houses send an address to the President asking that the judge be removed from office.

Has this process taken place earlier?

Yes, there has been one such case.  Justice Ramaswamy of the Supreme Court faced such a motion.  The inquiry committee found that the charges against him were valid.  However, the motion to impeach him did not gather the required support in Lok Sabha.

What are the charges against the Justice Sen?

There are two charges.  He is accused of misappropriating large sums of money which he received as a receiver appointed by the Calcutta High Court.  He is also accused of misrepresenting facts in this regard to the High Court.

What is the charge of misappropriation?  What did the inquiry committee conclude?

Justice Soumitra Sen was appointed Receiver in a case, where certain money belonging to SAIL was stuck in a 1983 dispute,  by an order of the Calcutta High Court on April 30, 1984.  As a Receiver, Justice Sen had the power to collect outstanding debts and claims due in respect of certain goods.

The Receiver is required to file and submit for passing, his half yearly accounts in the Office of the Registrar of the High Court.  However, Justice Sen did not comply with this rule.  As a Receiver, Justice Sen was required to open only one account and not move funds without prior permission.

However, the Inquiry Committee found that two separate accounts were opened by Justice Soumitra Sen as Receiver, with ANZ Grindlays Bank and Allahabad

Bank .  A total sum of over Rs 33 lakh was transferred in these accounts from the sale of the goods which was unaccounted for.

Justice Sen claimed he could not account for this amount since it was invested in a company called Lynx India Ltd. to earn interest. The Inquiry Committee found this claim to be false as well.

While the Parliament was proceeding with the motion for impeaching Justice Soumitra Sen of the Calcutta High Court for “misconduct” and “misappropriation of funds” in the capacity of a court receiver, the last minute resignation of Justice Sen rendered impeachment proceedings ‘infructuous’.

Earlier, on August 18, 2011, Justice Soumitra Sen become the first judge to be impeached by Rajya Sabha. The Upper House had  approved the motion with the  overwhelming majority of 189 votes in favour and 17 against.

Till date, no judge of the higher judiciary (Supreme Court and High Courts) has been successfully impeached.

This action was done by him as an advocate? Are there any charges against him after he was appointed as a judge?

Justice Soumitra Sen was appointed a High Court Judge on December 3, 2003. The Inquiry Committee noted that Justice Sen’s actions were, “an attempt to cover up the large-scale defalcations of Receiver’s funds”.

After he became a Judge he did not seek any permission from the Court for approval of the dealings, as required by the Court, nor did he account for the funds.

What about Justice Dinakaran’s case ?

Another such motion had been initiated against Justice PD Dinakaran but he  resigned as the Chief Justice of the Sikkim High Court on July 19, 2011 a day ahead of the hearing of the three-member inquiry committee appointed by the Rajya Sabha Chairman .

The charges against the judge include land grabbing, accumulation of unaccounted assets, passing judicial order for extraneous considerations, following which his elevation to the Supreme Court was also stalled.

The committee, appointed by the Rajya Sabha Chairman in January 2010, was headed by Supreme Court judge Justice Aftab Alam and the then Karnataka High Court Chief Justice J S Khehar and senior advocate PP Rao.