Friday, March 9, 2012

Impeachment in India: The Case of Justice Soumitra Sen · mlq3 · Storify

Impeachment in India: The Case of Justice Soumitra Sen · mlq3 · Storify

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Impeachment in India: The Case of Justice Soumitra Sen

In India, a Justice of the High Court of Calcutta recently faced impeachment, and resigned at the point his conviction became imminent. The case has sparked a debate on reforming the judiciary in India.

  1. I. Impeachment as deterrent and punishment

  2. This is as concise as quote as one can wish for, on impeachment and what it requires:
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    Impeachment is not easy as it requires political will, genuine reasons and numbers SOURCE: Times of India 2012-02-12 02:11:00
    Justice Soumitra Sen impeachment: Lat...
    4 days ago
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    Pravasitoday
    4 days ago
  5. The case of Justice Soumitra Sen gripped Indian politics late last year. This article provides an background into the controversial legal career of the first Justice to face impeachment:
  6. A newspaper commentary pointed out that impeachment provides institutions an opportunity to demonstrate the can be effective instruments for accountability:
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    Mail Today on Friday drew a contrast between the Anna Hazare’s fight against corruption and Justice Sen’s impeachment. “While the masses gathered in Delhi and other parts of the country are protesting against the failure of the political class to pass an effective Lokpal Bill, the impeachment proceedings provided an excellent example of how Parliament can be made to work.” Praising the ministers for handling the whole situation with maturity, the paper said, noting that the tenor of the debate showed the process was “aimed at the removal of a single tainted judge and not a critique of the higher judiciary as a whole.” “Hopefully, our parliamentarians will display a similar spirit of bipartisanship and respect for institutions in addressing the various issues of public concern,” it added.
    What They Said: Justice Sen’s Impeach...
    4 days ago

  8. II. How impeachment works in India

  9. The article first discusses constitutional provisions for the impeachment of judges. While the Constitution of India provides for the independence of the judiciary, it provides checks and balances by way of impeachment in parliament.
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    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.
    Judges Impeachment Procedure and Just...
    4 days ago
  11. The Lok Sabha is the lower house of the Indian Parliament, while the Rajya Sabha, also known as the Council of States, is the upper house. The Indian judiciary, since the country is a federal state, has a national Supreme Court, with each state having its own High Court. An impeachment motion requires 100 Lok Sabha members, or 50 Rajya Sabha members, to initiate. Depending on the house in which the motion was introduced, a committee of inquiry is formed, composed of a Supreme Court judge, the Chief Justice of the High Court, and an eminent jurist. The procedure followed from the formation of a committee of inquiry, to conviction or acquittal in impeachment, follows:
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    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.
    Judges Impeachment Procedure and Just...
    4 days ago

  13. III. The Case of Justice Sen: Inquiry, Hearing, and Resignation

  14. Based on the procedure outline above, a Committee of Inquiry was formed to look into the charges against Justice Sen. 
  15. Justice Sen was then given the opportunity to confront the charges and defend himself. The transcript of the proceedings gives an interesting glimpse into Indian parliamentary and impeachment procedures, as well as how Justice Sen tried to acquit himself.
  16. From the transcript, here is the opening of the presentation of the charges:
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    SHRI SITARAM YECHURY (WEST BENGAL): Thank you, Mr.Chairman, Sir.I rise, Mr. Chairman, Sir, to move these motions in response tothe call of duty to my country and my Constitution. Particularly, I riseat a time when waves of protests are taking place all across thecountry on the issue of corruption at high places. But, I think, thoughby accident and not by design, these motions are coming up fordebate before us in this august House very fortuitously and it ishappening at a time when the Parliament can also exercise its will andresolve of fighting corruption in high places. And it is in that context I   rise to move these motions, as you have mentioned, fully conscious ofthe solemnity of the occasion. I also rise with a deep sense of anguishto move these motions. I shall return to these aspects a little later.Let me first move these motions.Sir I beg to move the following motion: This House resolves that an address be presented to thePresident for removal from office of Justice Soumitra Senof the Calcutta High Court on the following two grounds ofmisconduct:-(iii)   Misappropriation of large sums of money, which hereceived in his capacity as receiver appointed by theHigh Court of Calcutta; and(iv)   Misrepresented facts with regard to themisappropriation of money before the High Court ofCalcutta.Sir, I also move the following motion: This House do consider the Report of the Inquiry Committee inregard to investigation and proof of the misbehaviouralleged against Shri Soumitra Sen, Judge, High Court ofCalcutta which was laid on the Table of the House on the10 th November, 2010.   Sir, as I have said, I moved these motions fully conscious of thesolemnity of the occasion. This arises from the fact that it is for thefirst time that this august House is considering the invocation of ourConstitutional provisions for the adoption of such motions. This hasnot happened in our history so far.
    Text of Justice Soumitra Sen's Defence
    2 days ago
  18. This news report summarizes the arguments made by Justice Sen on his own behalf. His full speech is in the transcript of the proceedings.
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    Justice Sen defends himself in Parliament
    ibnlive
    7 months ago
  20. After Justice Sen delivered his speech defending himself, Arun Jaitley rose to deliver a rebuttal. This excerpt is a powerful argument for impeachment:
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    Judiciary performs a divine function where ordinary humans decide the fate of others. When this divine function of deciding the fate of others is bestowed in a Judge, we expect him to perform it with the highest standards of scholarship and utmost impartiality. He must be detached from all collateral persuasions. The premise of the utmost impartiality, free from aberrations under which the institution of judiciary was created, is no longer available. There are compromises, in terms of quality, in terms of independence and collateral influences. Thus, there is a need to be vigilant about the judiciary. 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. Caesar divorced his wife merely on the basis of suspicion. Those who occupy high offices must live through the scrutiny of highest standards of probity. A Judge must be beyond suspicion. Is Justice Soumitra Sen guilty of ‘proven misconduct?
    MLQ3 on Tumblr!
    2 days ago
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    Arun jaitley Speech in rajyasabha on Impeachment Part 1
    bjpco2006
    7 months ago
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    Arun Jaitley Speech in Rajyasabha Part 2
    bjpco2006
    7 months ago
  24. In the end, conviction seemed imminent, after the Rajya Sabha voted against Justice Sen in overwhelming numbers. At this point, with a probable vote against him in the Lok Sabha, Justice Sen submitted his resignation to the President of India, ending the impeachment process.

  25. IV. Judicial Impunity

  26. This entry criticizes the outcome of the impeachment of Justice Sen. Resignation enabled him to escape conviction and, furthermore, keep his retirement benefits.
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    An overwhelming majority of Rajya Sabha voted in favour of impeaching Justice Soumitra Sen of Calcutta High Court on August 17. Lok Sabha was to debate the issue in the next few days. Meanwhile he resigned on September 1. His resignation was accepted. Lok Sabha dropped the impeachment proceedings. Justice Sen would get his retirement benefits. Everyone is happy. The End. Wholesome mockery! What else does one make of the above?
    Valady Views: Impeachment of High Cou...
    4 days ago

  28. V. Soul-searching and Reforms

  29. In discussions and analyses of the Indian judiciary, it's interesting to note that public discussion focuses on two aspects of the judiciary: corruption and impunity.
  30. The general political atmosphere in India seems conducive to calls for reforming the judiciary and strengthening mechanisms for judicial accountability.
  31. This entry points to something quite familiar:
  32. It describes how the Supreme Court of India has shielded judges from being held to account by requiring the permission of the Chief Justice of India before criminal investigations can take place into the conduct of judges. This, the writer points out, means accountability is diminished since the judiciary is inclined to shield itself --while impeachment is a long, drawn-out process in parliament.
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    The Supreme Court has also compounded the matter by removing judges even from the ambit of criminal investigation. Thus one cannot even register an FIR against a judge taking bribes without the prior permission of the Chief Justice of India. Thus, the judiciary has become highly self protective and taken the form of a closed and opaque box. Removal of judges difficult One thing is very clear about our Legal system – it lacks in-house self correcting mechanisms. Why? Because judges can’t judge their own brothers objectively and in the unlikely event of any judge being found guilty, the cumbersome parliamentary impeachment procedure almost assures that they are never removed.
    How Healthy is Indian Judicial System...
    4 days ago
  34. While figures such as the Dalai Lama (who has lived in India since going into exile) and even the Vice President of India have criticized the Indian judiciary, and the article highlights how susceptible the judges might be to influence from the powerful. 
  35. The article points out that allegations of bribery and other forms of corruption has led to calls for judges to declare their assets and liabilities upon assuming office. The Information Commission of India issued a directive (on Freedom of Information grounds) for justices in the Supreme Court to disclose their assets and liabilities. While still facing a court challenge, the Supreme Court complied.
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    In the past couple of years, few allegations of corruption in the judiciary have been reported in the newspapers (the Sumit Mukherjee scandal of the Delhi High Court; the club scandal of the Punjab High Court; the Ghaziababad Provident Fund scandal, etc.). The Dalai Lama, a Nobel laureate, has equated corruption in the Indian judiciary with “pocket money.” Indian Vice President Hamid Ansari stated in his valedictory address at the International Conference of Jurists, “The challenge to the supremacy of the rule of law is elitist behavior. National and international media is full of reports of how the elite are able to subvert the rule of law with money or influence. A large swathe of society and polity even accept this situation as a way of life.” He also stated that corruption “shakes the legitimacy of the state, erodes sovereignty of the state and its capacity to exercise sovereign functions including ensuring law and order for the citizens.” A study conducted by the Centre for Media Studies in 20051 revealed “during the last one year, three-fifths (61 percent) of respondents had paid money to lawyers, whereas 29 percent had paid money to court officials, and 15 percent paid money to middle men to get their work done.” This study had made many valuable suggestions for reforming the judiciary. One of these was that a new judge, before taking up the appointment, should declare his or her assets and liabilities. A couple of months ago the Delhi High Court upheld the order of the Central Information Commission under the Right to Information (RTI ) Act directing the Supreme Court of India to declare the assets of its judges. Against this judgment an appeal is pending before the Supreme Court. In spite of the pending appeal, the Supreme Court judges have now declared their assets.
    The Judiciary: A Pillar of Indian Dem...
    4 days ago
  37. However, as this next article discusses, the disclosure of assets by Justices of the Supreme Court of India, is a voluntary act. In contrast to this disclosure, the Supreme Court itself has ordered that the decision of the Registrar-General of the Supreme Court, in terms of requests for information, is final, and cannot be appealed to the Information Commission of the government. Combined with the regulations that requires Supreme Court permission before any judge can be investigated, the article concludes that accountability for judges is extremely difficult.
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    Transparency in the judicial organization and among the judges was very much demanded in the recent past. A need was felt that the judges should declare their assets. However, many judges of the higher judiciary have declared their asset voluntary, although, its reliability is still questionable. Another point, to buttress the need of such law, is the response of Judiciary towards, Right to Information Act, 2005. This Act was enacted as a tool to effectively check corruption in our democratic system. The other wings of our system, namely legislature, executive has been duly brought under the ambit of this act for all the purposes. Any information can be obtained from the departments of both of these organs. However, judiciary has kept itself aloof from RTI, for all the practical purposes. Also, the Supreme Court has confirmed that decision of the of the Registrar General of the Court should be final and not subject to any independent appeal to the Central Information Commission. The former CJI even went to extent of saying that “any self respecting judge would not like the idea of any layman {third person} probing into the allegations against a judge and imposing punishment”. Therefore, keeping itself outside the purview of RTI undermines the confidence of the public in judiciary vis-a-vis the system of justice in the biggest democratic country. Thus, it is clear that how the judiciary in our country is completely unaccountable to any other organ. It is covered under the layers of protection, and has also self insulated itself from the investigation into any criminal matter without the approval of CJI. This poses a threat to the democratic fabric of our country. In fact, in these conditions, the institution of justice cannot even be considered as democratic and therefore there is a need of a law which makes Judiciary accountable.
    BP SHARMA Advocate: JUDICIAL ACCOUNTA...
    4 days ago
  39. A former Chief Justice opines that the lack of transparency applies to the process under which judges are selected and appointed. The points raised in this article will also be familiar to Filipinos: the 1987 Constitution took away the ratification of presidential appointments to the courts, and placed the vetting of judicial appointments in a Judicial and Bar Council, whose shortlist is the exclusive source of candidates from which presidents pick their judicial appointments. A similar change took place in India, but, the article argues, the criteria is still murky and the process still undertaken by insiders.
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    The text of the Constitution that provides for the appointment of the judges of the Supreme Court (Article 124) and the High Court (Article 217) is deceptively simple. They provide for the President to appoint  them in “consultation” with other judges. Originally, the power to appoint judges vested ultimately in the executive. It is now with the Chief Justice and the senior judges of the court, i.e. the Collegium. It is unnecessary to trace the evolving jurisprudence of the Supreme Court regarding the issue of judicial appointments beyond this. Suffice it to say, that in the last of the famous trinity of the Judges Cases, the Supreme Court changed the character of “consultation” to “concurrence”. As Anil Divan pithily points out,  the Judges Cases have not really broken the mystique behind the “Sacred Ritual” of appointments — they have only changed the circle of “High Priests.” Now, instead of the executive, primacy is  given to the CJI and the Collegium of Judges. The way in which judges are appointed embodies a set of values about democracy. Choosing judges based on undisclosed criterion in largely unknown circumstances reflects an increasing democratic deficit. The recent case of the impeachment motion of Soumitra Sen, former judge of the Calcutta High Court, once again highlighted the need to have a relook at the process of appointment. The unanimous voice of Parliament, while considering the impeachment motion of Sen, was that there was now a greater need for a National Judicial Commission than ever before. The legislators were, in fact, only echoing the view that has time and again been stressed upon by various legal luminaries and jurists.
    Current Affairs for UPSC Civil Servic...
    4 days ago
  41. The article closes with an appeal for the composition of the judiciary to be reconsidered: while professional merit must remain of the highest, there is also the need to have judges from more varied backgrounds and social origins.
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    There is no gainsaying that there is a need to preserve and of course, if possible, to improve the professional and personal quality of our judiciary and therefore, merit should be given great primacy. Yet, it is equally important to consider the importance of social diversification in public institutions and the need to include hitherto under-represented groups for a more holistic advancement of all sections of society. A wider range of social backgrounds should mean not just representation from the backward classes and the minorities but also women. This underlying policy aim is perfectly respectable, namely that the public may well have more confidence in its judges if they are more reflective of the make-up of the community at large.
    Current Affairs for UPSC Civil Servic...
    4 days ago
  43. The Philippines, then, is grappling with problems confronting other democratic societies, too: have judges become untouchable? Are they able to use the rules to shield themselves from scrutiny and accountability? Is impeachment an effective deterrent to wrongdoing, and a useful procedure for determining fitness for continuance in office?

  44. VI. Further Readings

  45. The following provides an overview of the Constitution of India and its provisions on the judiciary.
  46. Developments and proposals for judicial reform are covered in this blog:
  47. x x x."
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