Judges in the dock

The judiciary comes under the scanner over charges of corruption and misconduct.

in New Delhiin Kolkata

IN an unprecedented move, the Chief Justice of India, Justice K.G. Balakrishnan, wrote to the Prime Minister, Manmohan Singh, recommending that the proceedings contemplated by Article 217(1) read with Article 124(4) of the Constitution be initiated for removal of Justice Soumitra Sen, Judge, Calcutta High Court.

Earlier, an in-house committee, in a report submitted to the Chief Justice of India on February 1, recommended that Justice Sen be removed from office. The committee comprised Justice A.P. Shah (then Chief Justice, Madras High Court), Justice A.K. Patnaik (Chief Justice, Madhya Pradesh High Court) and Justice R.M. Lodha (Judge, Rajasthan High Court).

Under Article 217(1) (b) of the Constitution, a Judge of the High Court may be removed from office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court.

Article 124(4) states: A Judge of the 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 been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

The procedure for removing a Judge involves three stages. In the first stage, under the Judges (Inquiry) Act, 1968, a notice for presenting an address to the President for the removal of a Judge has to be signed by 100 members of the Lok Sabha, and submitted to the Speaker. A similar notice can also be signed by 50 members of the Rajya Sabha and submitted to the Chairperson of the Rajya Sabha. If the Speaker or the Chairperson admits the motion, he must appoint a three-member committee comprising the sitting Chief Justice of India or a sitting Judge of the Supreme Court, a sitting Chief Justice of a High Court, and an eminent jurist.

In the second stage, the committee takes over the investigation into the charges of misbehaviour against the Judge. If the committee reports that the Judge is not guilty, the motion pending in the House shall not be pursued. It is only if the Committee finds the Judge guilty of any of the charges of misbehaviour that Article 217(1)(b) or 124(4) comes into play, in the third stage.

It is instructive to recall the role of an in-house committee constituted by Chief Justice Sabyasachi Mukherji when audit reports in 1990 carried detailed charges against Justice V. Ramaswami regarding improper use of funds by him as the Chief Justice of the Punjab and Haryana High Court, before his elevation as a Supreme Court Judge.

This committee, comprising three Supreme Court Judges, inquired whether or not, in the interest of the administration of justice, Justice Ramaswami should continue as a Judge of the Supreme Court. At the beginning of the inquiry itself, Justice Ramaswami told the committee that it had no jurisdiction to hold an inquiry into his conduct. The committee, nevertheless, found that there was no prima facie case before it since inquiries by competent authorities were going on.

Ramaswami maintained a studied silence over the charges against him. Subsequently, the inquiry committee set up by the Speaker of the Lok Sabha found that the charges against him were substantially true. Parliament, however, failed to remove him from office because the then ruling party, the Congress, had orally directed its members to abstain from voting on the motion in the Lok Sabha on May 11, 1993, thus leading to the defeat of the motion.

In contrast, Justice Sen not only subjected himself to the jurisdiction of the in-house committee but made submissions to it in his defence.

The Supreme Courts in-house committee draws its legitimacy from the Supreme Courts judgment in C. Ravichandran Iyer vs Justice A.M. Bhattacharjee & Others (SC 339, Judgements Today, 1995(6)). The in-house procedure contemplated in that judgment was seen as an answer to the yawning gap between proved misbehaviour and bad conduct inconsistent with the high office on the part of a non-cooperating Judge/Chief Justice of a High Court. The court had believed that the latter could be disciplined by self-regulation through in-house procedure. This in-house procedure would fill in the constitutional gap and would yield salutary effect, the Bench had suggested.

Justice Soumitra Sen was a practising advocate of the Calcutta High Court before he was appointed a Judge of that High Court on December 3, 2003. The charges against him pertain to his conduct as Receiver before his appointment as Judge.

A Receiver is an impartial person appointed by the court to collect and receive the rents and profits of land or personal estate, and to protect, preserve and manage property during the pendency of a suit. A Receiver is an officer of the court and subject to its orders.

The in-house committee constituted by the Chief Justice of India has in its report accused Justice Sen of breach of trust and misappropriation of Receivers funds for personal gain.

In 1983, Steel Authority of India Limited (SAIL) filed a money suit in the Calcutta High Court against Shipping Corporation of India Limited, and others, seeking that it make an inventory of fire bricks lying at Bokaro Steel Plant and sell them. The High Court, on April 30, 1984, appointed Soumitra Sen as a Receiver to make an inventory of these goods, which had been imported and then rejected by SAIL, and to sell them and hold the sale proceeds to the credit of the suit.

The court directed Soumitra Sen to deduct 5 per cent of the sale price towards his remuneration as Receiver, keep the balance in a separate bank account in a bank of his choice and to hold the same free from lien or encumbrances, subject to the further orders of the court.

The in-house committee found that Soumitra Sen did not have honest intention, since he mixed the money received as Receiver and his personal money and converted the Receivers money to his own use; and that there had been misappropriation (at least temporary) of the sale proceeds.

On April 10, 2006, Justice Kalyan Jyoti Sengupta of the High Court, on a petition from SAIL, directed Justice Sen to repay Rs.57,65,204, which included interest amounting to Rs.26,25,644 (since the purchase consideration was Rs.31,39,560). In his judgment, Justice Sengupta made several adverse remarks against Justice Sen. After paying the entire money as directed, Justice Sen went on leave. After the expiry of the leave, no judicial work was allotted to him.

Meanwhile, a Division Bench heard his appeal against Justice Senguptas judgment and found that there was no material to hold that he had misappropriated any amount or had made any personal gain. The Division Bench directed deletion of all observations made against Justice Sen in Justice Senguptas order. Interestingly, none of the parties to the litigation contested the proceedings before the Division Bench or made any allegations against Justice Sen.

The Chief Justice of Indias letter to the Prime Minister recalls this factual matrix but does not explain why the Division Benchs judgment could not be considered final. Legal experts say it is because the Division Benchs judgment was not appealable and was seen as collusive that the Supreme Court had to step in, by constituting the in-house committee. Justice Sens critics point out that he ought to have returned the money held by him as Receiver before he was appointed as a Judge. But sources close to Justice Sen said the money held by him as Receiver was not his personal property irrespective of the place he had kept it and could only be returned after proper adjudication and a direction by the court. The sources also added that there was no mala fide intention on Justice Sens part and there was absolutely no proof whatsoever that he utilised any part of the purchase consideration for personal gain.

In a note given to Frontline, Justice Sens counsel hinted that the in-house committee exceeded its jurisdiction. Under the procedure by which it was constituted it could only inquire into Justice Sens conduct after he became a Judge, counsel said.

The Chief Justice of India has forwarded a copy of the committees report to Justice Sen. A fair appreciation of the case for Justice Sens removal from office may have to wait until this report is made public.

The Chief Justice of Indias letter to the Prime Minister indicates his keenness to strengthen the peoples confidence in Judges at a time when serious cases of judicial corruption have cast their shadow on the credibility of the higher judiciary.

Chief Justice Balakrishnan also happens to be the first Chief Justice of India to grant permission to an investigating agency to register a criminal case against Judges of a High Court. This power, conferred on the Chief Justice of India in 1991 in the Justice K. Veeraswami case, remained unused all these years even though several cases of corruption within the higher judiciary had come to light.

Chief Justice Balakrishnan allowed the Central Bureau of Investigation (CBI) to interrogate two Judges of the Punjab and Haryana High Court, Nirmaljit Kaur and Nirmal Yadav, in connection with the cash-for-judge scam. A law officer sent Rs.15 lakh to Justice Nirmaljit Kaurs official residence and later claimed that it was meant for Justice Nirmal Yadav and had been delivered to Justice Kaur by mistake.

Though intended to protect a Judge from frivolous prosecution and unnecessary harassment, the power also bestowed on the Chief Justice of India a great deal of discretion. In the Justice K. Veeraswami case, the Supreme Court laid down that no criminal case can be filed against a Judge or Chief Justice of the High Court or Judge of the Supreme Court without the consent of the Chief Justice of India.

In the Ghaziabad provident fund (PF) scam, involving 34 Judges belonging to lower courts, High Court and the Supreme Court, a misappropriation of Rs.23 crore from the PF of Class III and IV employees was detected on the basis of the confessional statement of Ashutosh Asthana, a Ghaziabad court official. He reportedly confessed that he used the PF funds to buy expensive gifts for Judges and their families. Although the police had secured vouchers and delivery receipts as preliminary evidence, the Chief Justice of India permitted the police to interrogate the Judges only through questionnaires. However, with the Uttar Pradesh Police pleading its helplessness to investigate further the case with all its ramifications, the Supreme Court conceded the State governments request to hand over the case to the CBI.

The outcome of these cases will be keenly watched as they have a bearing on the accountability of the higher judiciary.