Saturday, September 27, 2008

Article: Judiciary comes under the scanner

Judges in the dock

in New Delhi
in Kolkata

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


Justice K.G. Balakrishnan, Chief Justice of India (seen here with Justice A.R.Lakshmanan, Chairman of the Law Commission, to his left), wrote to Prime Minister Manmohan Singh recommending constitutional proceedings against Justice Soumitra Sen for his removal. He also became the first Chief Justice of India to permit an investigating agency to register a criminal case against Judges of a High Court when he permitted the CBI to interrogate two Judges of the Punjab and Haryana High Court in the cash-for-Judge scam

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.

Jurisdictional issues

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 Court’s in-house committee draws its legitimacy from the Supreme Court’s 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.

The charges

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 Receiver’s 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 Receiver’s 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 Sengupta’s 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 Sengupta’s 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 India’s letter to the Prime Minister recalls this factual matrix but does not explain why the Division Bench’s judgment could not be considered final. Legal experts say it is because the Division Bench’s judgment was not appealable and was seen as collusive that the Supreme Court had to step in, by constituting the in-house committee. Justice Sen’s 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 Sen’s 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 Sen’s counsel hinted that the in-house committee exceeded its jurisdiction. Under the procedure by which it was constituted it could only inquire into Justice Sen’s conduct after he became a Judge, counsel said.

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

Other cases

The Chief Justice of India’s letter to the Prime Minister indicates his keenness to strengthen the people’s 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 Kaur’s 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 government’s 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.

Also read the related stories

‘Honesty matters’


Interview with Justice J.S. Verma, former Chief Justice of India.


Justice J.S. Verma, former Chief Justice of India

JUSTICE Jagdish Sharan Verma was the Chief Justice of India from March 25, 1997, to January 18, 1998. It was during his tenure that the Supreme Court adopted the Restatement of Values of Judicial Life and the in-house procedure to maintain judicial discipline. Justice Verma, however, is better known as the author of the majority opinion in the Second Judges’ case (1993), which gave primacy to the judiciary in the matter of appointment of Judges to the higher judiciary. In this interview, he discusses some of the implications of this judgment in the light of certain recent controversies.

You said in one of your speeches that judicial appointments have become judicial disappointments. Do you now regret your 1993 judgment?

My 1993 judgment, which holds the field, was very much misunderstood and misused. It was in that context I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore, some kind of rethink is required. My judgment says the appointment process of High Court and Supreme Court Judges is basically a joint or participatory exercise between the executive and the judiciary, both taking part in it.

Broadly, there are two distinct areas. One is the area of legal acumen of the candidates to adjudge their suitability and the other is their antecedents. It is the judiciary, that is, the Chief Justice of India and his colleagues or, in the case of the High Courts, the Chief Justice of the High Court and his colleagues [who] are the best persons to adjudge the legal acumen. Their voice should be predominant. So far as the antecedents are concerned, the executive is better placed than the judiciary to know the antecedents of candidates. Therefore, my judgment said that in the area of legal acumen the judiciary’s opinion should be dominant and in the area of antecedents the executive’s opinion should be dominant. Together, the two should function to find out the most suitable [candidates] available for appointment.

I expressly said in that judgment that in the area of non-appointment on the grounds of bad antecedents, it is left to the executive to reject a recommendation made by the judiciary, for reasons to be recorded. If there is any reasonable doubt regarding a candidate’s antecedents, and if the Supreme Court’s collegium reiterates a recommendation sent to the executive, unless the initial recommendation and its reiteration are unanimous by the collegium of the judiciary, the executive is not bound.

When the former President [A.P.J.] Abdul Kalam sent back recommendations of the collegium [comprising the Chief Justice of India and four senior-most Judges of the Supreme Court] to the government for reconsideration, the initial recommendations were not unanimous decisions of the collegium. [According to reports in the media, Kalam returned to the executive for reconsideration recommendations pertaining to the appointment of Vijender Jain and Jagdish Bhalla as the Chief Justices of the Punjab and Haryana High Court and the Kerala High Court respectively.] The reiteration of these recommendations by the Supreme Court collegium was also not unanimous. Now, why did the executive not exercise its power of non-appointment? It is wrong to say that my 1993 judgment does not leave any scope for the executive to assert where it should.

To begin with, after the First Judges’ case of 1982, the executive said, we alone matter, the judiciary had no say. I was a Judge in the High Court since 1972, and I was involved in the appointment process, so I know. Even during the pre-1993 phase, it depended on the strength of the Chief Justice concerned. That was the executive arbitrariness that was the occasion when the Second Judges case came. My judgment does not say I alone, as the CJI, matter. That is how the collegium came.

The general impression within the judiciary is that there is arbitrariness in the exercise of powers by the collegium. And the executive conveniently says it cannot do anything when it suits it. I wrote in December 2005 to the then Chief Justice, Y.K. Sabharwal, with copies of the letter to the next two senior Judges, Ruma Pal and K.G. Balakrishnan, about the impression I got during my visits to several High Courts in the country. I said the recommendation made by the collegium in the High Courts is not always objective, since it is at the behest of someone from the Supreme Court, of a lawyer not of the requisite stature or noticed earlier, and this is hinted as a disturbing trend. Such aberrations, I pointed out, are seen in the case of persons with access to or affinity with someone involved in the appointment process or close to it. I deplored that susceptibility of members in the High Court collegium to such influence results from their expectation of better future prospects of upward mobility by resilience to this influence.

Even if there is an iota of doubt, why appoint? If the President of India returns a recommendation for reconsideration, it is a serious matter. Then the collegium must show why the allegations are wrong.

Is the National Judicial Commission (NJC) an answer to the aberrations in the appointment process?

Whatever the system, it is the honesty of purpose of the persons who are in charge of working that system that matters. Honest errors everyone makes. But then if something stares you in the eye, and then you do it, it weakens the system. And, therefore, I am for transparency. There is no reason why, after an appointment is made, the entire correspondence cannot be made public. The public must know the reason why a collegium recommended someone and persisted.

Some names that were expressly rejected by the collegium during my time were subsequently recommended after I retired from the Bench. Maybe the earlier decision was wrong. But the records must show why.

Consultation among senior Judges in the matter of appointments was also a convention before the 1993 judgment. There is no inherent flaw in the judgment. The flaw is only in the working.

Now, what should be the composition of the NJC? I am not for Speaker or anyone else, because ultimately they are political persons. You have instances of the Speaker going to the executive. Therefore, the Vice-President would be the correct choice to head the NJC. The Vice-President does not belong to either the executive or the judiciary. The Chief Justice of India and two senior Judges for the judiciary; the Prime Minister, and the Home Minister or Law Minister for the executive. For High Courts, we can have the CJI, the seniormost puisne Judge and the Chief Justice of the High Court, who should consult his colleagues in the High Court. For the executive, you can include the Chief Minister, apart from the Prime Minister and his nominee (the Home or Law Minister). So, neither the judiciary nor the executive can think that it has the veto power, and the constitutional purpose of the exercise being joint and participatory becomes real.

Can you throw light on how, during your tenure as the CJI, appointments took place?

For every Supreme Court appointment, I consulted senior lawyers like Fali S. Nariman and Shanthi Bhushan. I used to consult five or six top lawyers. I used to consult even lawyers belonging to the middle level. Similar consultation took place in the case of High Courts. I recorded details of every consultation. I wish all my correspondence is made public. After the appointment, why should it be secret? If there is a good reason to appoint the Judges, then at least the doubts people cast on them even now will not be there. And if there is a good reason why they should not have been appointed, then it would expose the persons who were responsible for their appointment.

In respect of more than one Judge, I had an inquiry held, and senior Supreme Court Judges found the allegations true, and then I forwarded all those papers to the Prime Minister for action on that basis. The Constitution does not provide for any other action except removal.

I wrote to the High Courts that I will not clear any appointments in the High Courts unless the person concerned agrees to abide by three resolutions: asset declaration, restatement of values and in-house procedure. In 1997, I wrote to the Prime Minister that these require legal sanction to be enforced. If there is a false allegation, the complainant must be punished, and the Judge’s name must be cleared. Most of the allegations against the Judges are malicious and false. Even if there is one true allegation, that must be taken to its logical conclusion.


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