Fallacious assumption

THIS is with reference to the article Unhealthy precedent (November 18). It purported to criticise the decision of the Chairman of the Rajya Sabha to wind up the committee probing into the allegations levelled against Justice P.D. Dinakaran. According to the writer, the committee should have been allowed to complete its task and its premature closure has set a dangerous precedent.

The article appears to have overlooked constitutional provisions and the provisions of the Judges (Inquiry) Act, 1968, and the Rules made thereunder. If these provisions had been taken note of, the statements made in the article would not have been made.

Article 124 (4) of the Constitution provides for removal of a judge. Though it refers to a judge of the Supreme Court, by reason of Article 218 of the Constitution, the provisions of Article 124 (4) and (5) also apply to a judge of the High Court.

Article 125(5) provides that Parliament may by law, inter alia, regulate the procedure for the investigation and proof of the misbehaviour or incapacity of a judge under Clause (4). Thus, the question of investigation and proof of misbehaviour or incapacity arises only in the context of removal of a judge and not in any other context, much less for judicial accountability. It is for this reason that Section 3(2) of the Judges Inquiry Act provides that if a motion under Subsection (1) is admitted, the Chairman shall keep the motion pending and constitute a committee for the purpose of making an investigation into the grounds on which the removal of a judge is prayed for. Thus, this is the whole purpose of an inquiry under Article 124(5) and under Section 3(2) of the Judges (Inquiry) Act.

The article seemed to proceed on the baseless assumption that the committee was constituted for the purposes of an inquiry generally into the conduct of alleged misbehaviour of a judge. This assumption is fallacious inasmuch as the investigation deals with the grounds on which the removal is prayed for. If the judge resigns, then there is no question of proceeding for his removal.

The distinction sought to be made in the article with regard to Justice Dinakaran's case and Justice [Soumitra] Sen's case is unjustified and baseless. In Justice Sen's case, significantly, after the Rajya Sabha passed the motion to remove him from office, the Lok Sabha did not proceed with a debate only because in the meanwhile Justice Sen had tendered his resignation. The impeachment process was not taken further in recognition of the fact that there was no question of removal of a judge who had already resigned.

The assumption that the judge was allowed to scuttle an inquiry against him by simply resigning is based on a complete misconception and misunderstanding of the legal provisions as set out above. The inquiry is not a general or roving inquiry but an inquiry for the purpose of investigation of grounds for removal of a judge.

It is further to be noted that after his resignation, Mr Dinakaran was called to appear before the committee on September 10, but he did not do so. Therefore, if the inquiry committee had submitted its report to the Chairman, Rajya Sabha, without hearing Mr Dinakaran, it would have been an ex parte report, and it can be safely assumed, that Mr Dinakaran would not have submitted a reply to it.

Therefore, the material in the public domain would have been totally one-sided. Further, as happened in the case of Mr Soumitra Sen, the House would have decided not to pursue the matter in view of the resignation of Mr Dinakaran. The motion, it should be noted, was for the removal of the judge, and owing to his resignation, he had, in effect, ceased to be a judge. In view of the facts and circumstances of the case, after careful consideration, it was felt that the committee had served out its purpose and it was not required any further. The decision to constitute the committee was made by the Chairman of the Rajya Sabha and he alone was competent to wind it up. There are precedents available in other countries where the proceedings initiated against sitting judges abated after they submitted their resignations.

The purpose of this letter is not to enter into an unnecessary debate or speculation regarding the two Supreme Court judgments referred to in the cases filed by Justice Dinakaran. Equally, it is not desirable to comment on the views of persons quoted in the article except to say that even one of the signatories to the motion to remove Justice Dinakaran described the Chairman's action as technically correct.

The winding up of the committee, however, does not mean that Dinakaran has been absolved of his wrongdoings, if any. The law of the land is there to deal with him as a citizen of this country, in the normal course. Further, whatever action the executive or civil society now takes will reveal the truth or otherwise of the allegations made and it will naturally be available in the public domain.

Therefore, what the Chairman, Rajya Sabha, did was fully in accordance with what is provided in the statute and is also supported by the precedents available.