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  • UNION INTERPARLEMENTAIRE INTER-PARLIAMENTARY UNION Association of Secretaries General of Parliaments COMMUNICATION from DR V. K. AGNIHOTRI Secretary General of the Rajya Sabha of India on Impeachment of a Judge in the Indian Parliament Session Kampala 2012
  • INTRODUCTION The Indian judiciary is an important organ of our state and commands considerable respect from the people of India for dispensing justice impartially. The independence and integrity of the members of the judiciary has always been a crucial element in the functioning and maturing of our democracy. However, sporadic allegations of corruption, sleaze, nepotism and misbehaviour involving the Judges of the higher judiciary have threatened to lower the prestige of the judiciary. In the recent past, the subject of impeachment of a Judge captured national attention in India and stirred a debate in the wake of the recommendation of the Chief Justice of India for removal of Justice Soumitra Sen, a sitting Judge of Calcutta High Court. Against this backdrop, it would be worthwhile to look into the constitutional provisions and the procedural developments that have taken place in the legislature in regard to the impeachment of Judges. CONSTITUTIONAL PROVISIONS The Constitution of India contains certain provisions for removal of a Judge from his office and regulation of the procedures thereof. The Constitution provides that a Judge of the Supreme Court or of a High Court may, by writing under his hand addressed to the President, resign his office, but he cannot be removed from his office except by an order of the President passed after an address by each House of Parliament in the prescribed manner1. The Constitution further provides for a “method” and “grounds” on which a Judge of the higher judiciary is to be removed which is as under: 1 Article 124(2)(a) read with Article 217(1)(a) of the Constitution of India. 2
  • “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 majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity2.” It can thus be inferred from this provision that the Constitution enjoins the following pre-conditions for the removal of Judge of the Supreme Court: (i) a Judge of the Supreme Court shall be removed only by an order of the President; (ii) it should be after presentation of an Address by each House of Parliament; (iii) the Address should be supported by a special majority; (iv) the Address should be presented to the President in the same session; and (v) removal has to be on the grounds of “proved” misbehaviour or incapacity. Further, the Constitution stipulates that “the Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge3. THE JUDGES (INQUIRY) ACT, 1968 The Judges (Inquiry) Bill, 1964 was formulated, laying down the procedure as contemplated by the above provision of the Constitution and 2 3 Article 124(4) of the Constitution. Article 124(5) of the Constitution. 3
  • the Bill was referred to a Joint Committee of the two Houses. After elaborate discussion before the Committee, in which eminent Members of Parliament and the then Attorney General and former Attorney General gave their evidence, the Joint Committee gave its report on 13 May 1966. The recommendations of the Committee were taken into account and The Judges (Inquiry) Act, 1968 was passed prescribing the procedure for the investigation and proof of misbehaviour and incapacity of Judges of the Supreme Court, including the Chief Justice of India, the Chief Justices and Judges of the High Courts. Procedure laid down in the Act4: Under the procedure laid down in the Act, a notice of a motion for presenting an Address to the President for the removal of a Judge, if given in Rajya Sabha (Upper House of the Indian Parliament), is to be signed by not less than fifty members of the House and, if given in Lok Sabha (Lower House), by not less than one hundred members of that House. The Chairman or the Speaker, as the case may be, after due consideration and consultation, may admit or refuse to admit the motion. Consequent on the admittance of the motion, the Chairman or the Speaker, as the case may be, will constitute a Committee of three members, one each from (i) the Chief Justice and other Judges of the Supreme Court; (ii) Chief Justices of the High Courts; and (iii) distinguished jurists. In case the notices of motion are given on the same day in both the Houses, the Committee will be constituted only if the motion has been admitted in both the Houses and thereupon jointly by the Chairman and the Speaker. In case notices of motion are given in both the Houses on different dates, the notice which is given later shall stand rejected. 4 M.N. Kaul and S. L. Shakdher, Practice and Procedure of Parliament, 6th Edition, 2009, New Delhi, pp. 1115 to 1117. 4
  • The Committee will frame definite charges against the Judge on the basis of which investigation is proposed to be held and will have the powers of a Civil Court in respect of summoning persons for examination on oath, production of documents, etc. In a case of alleged physical or mental incapacity and where such an allegation is denied, a Medical Board will be appointed for the medical examination of the Judge by the Chairman or the Speaker, as the case may be, or, where the Committee has been constituted jointly, by both of them. At the conclusion of the investigation, the Committee will submit its report to the Chairman or, as the case may be, to the Speaker, stating therein its findings on each of the charges separately with such observations on the whole case as it thinks fit. The report will, thereafter, be laid before the respective House or the Houses, if the Committee has been appointed jointly by the Chairman or the Speaker. If the Committee absolves the Judge of any misbehaviour or incapacity, the motion pending in the respective House or Houses, as the case may be, will not be proceeded with. If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, the motion will, together with the report of the Committee, be taken up for consideration by the House or the Houses in which it is pending. In the event of the adoption of the motion in accordance with the constitutional provisions, the misbehaviour or incapacity of the Judge will be deemed to have been proved and an Address praying for the removal of the Judge will be presented in the prescribed manner by each House of Parliament in the same Session in which the motion has been adopted. 5
  • INSTANCES OF IMPEACHMENT After the passing of The Judges (Inquiry) Act, 1968 a notice of a motion for presenting an address to the President for the removal of a Judge of the Supreme Court was given in Lok Sabha by 199 members on 15 May 1970. However, the Speaker did not consider it to be a fit case for action under The Judges (Inquiry) Act, 1968 and did not admit the notice5. So far judicial enquiry or impeachment motion has been initiated only against three Judges in India. The first such case involved the impeachment motion in Lok Sabha of Justice V. Ramaswami of the Supreme Court in May 1993 on charges relating to gross abuse of his financial and administrative powers as the Chief Justice of the Punjab and Haryana High Court and criminal misappropriation of property. However, the impeachment motion was defeated as it could not garner special majority in the House as required. The second case involved Justice Soumitra Sen of the Calcutta High Court whose removal from office was sought on two grounds by the following motions: (i) misappropriation of large sums of money in his capacity as the receiver appointed by the High Court of Calcutta; and (ii) misrepresentation of facts with regard to this misappropriation of money before the High Court of Calcutta. The Upper House voted in favour of his impeachment by 189 votes in favour and 16 votes against, first by a voice vote and then through division. The motion for his impeachment was to come up in the Lower House6. However, Justice Soumitra Sen sent in his resignation as a Judge of the Calcutta High Court to the President of India, with a copy to the Speaker, Lok Sabha, before his impeachment proceedings could begin in the Lok Sabha. The message relating to the decision of the 5 6 M. N. Kaul and S. L. Shakdher, Practice and Procedure of Parliament, 6th Edition, 2009, New Delhi, p. 1115. “Sen, First Judge impeached by Rajya Sabha”, Indian Express, New Delhi, 18 August 2011. 6
  • Lok Sabha not to proceed with the matter was reported in the Rajya Sabha on 6 September 20117. Thereafter, the impeachment motion lapsed. The third case involved Justice P. D. Dinakaran, Chief Justice of the Karnataka High Court, against whom charges of corruption were made. The Chairman, Rajya Sabha, set up another Inquiry Committee on 15 January 2010, to investigate into the grounds on which his removal was sought for. However, before the Committee could complete its investigation and submit its Report, the concerned Judge submitted his resignation on 29 July 2011 by addressing a letter to the President of India. In view of this, the notice of motion praying for presenting an Address to the President became infructuous and the Chairman, Rajya Sabha, brought the work of the Inquiry Committee to a close. A Notification and a Parliament Bulletin Part-II were issued in this regard. THE CASE OF JUSTICE SOUMITRA SEN Under article 124(4) of the Constitution, notice or notices of Motion with supporting documents, and signed by not less than 50 Members of Rajya Sabha is/are submitted to the Chairman, Rajya Sabha, praying for removal of a Judge of High Court/Supreme Court. The file is put up for orders of the Chairman under section 3(1) of the Act, who after consultation and consideration either may admit the Motion or refuse to admit the same. If the Chairman admits the motion, a para in Rajya Sabha Bulletin Part-II is published to this effect for information of Members. The process of constitution of a Committee under section 3(2) of The Judges (Inquiry) Act, 1968 is also initiated immediately. The Chairman may seek from the Chief Justice of India, a panel of the names of Judges of the Supreme Court and 7 Resume of the Business transacted by the Rajya Sabha, 223rd Session (1August to 8 September 2011), Rajya Sabha Secretariat, New Delhi. 7
  • Chief Justices of High Court, from amongst whom he may choose one name each for the constitution of the Committee. The name of an eminent jurist, as the third Member of the Committee, is chosen by the Chairman, Rajya Sabha himself. As and when the Committee is constituted, a notification in the Gazette of India, Extraordinary, Part-II and a Parliamentary Bulletin Part-II are issued to that effect (Annexures I & II). A note is sent to the Department of Justice for information about the constitution of the Committee and requesting that Department to issue Presidential Requests in respect of the serving Judges who are members of the Committee so as to enable them to work in the Committee (Annexure III). Another note is sent to the Department of Legal Affairs requesting them to make the necessary budgetary provisions to meet the expenses of the Committee as laid down in Rules 14 and 15 of the Judges (Inquiry) Rules, 1969 (Annexure IV). Once the Department of Justice obtains the Presidential Request and intimates the same (Annexure V), letters are issued to the Judge members of the Committee as also to the eminent Jurist, signed by the Secretary-General, informing them about the constitution of the Committee and their appointment to work as Members of the Committee (Annexure VI). The Chairman, Rajya Sabha, on receipt of a Motion submitted by Members of Rajya Sabha, on 20 March 2009 and having found the Motion in order, had accordingly appointed a Committee to inquire into the allegations of misbehaviour/misconduct in respect of Mr. Justice Soumitra Sen of Calcutta High Court and the fact was communicated to its members. Submission of Report to the Chairman, Rajya Sabha and laying the same on the Table of both Houses of Parliament: 8
  • In pursuance of proviso to Rule 9(2) (c) of the Judges (Inquiry) Rules, 1969, the Judges Inquiry Committee constituted in respect of Justice Soumitra Sen sought extension of time of two months for submission of Report on two occasions and the extension was granted by the Chairman, Rajya Sabha, on merits, in each case. The Report of the Committee, duly authenticated by the Presiding Officer, was presented to the Chairman, Rajya Sabha on 10 September 2010, in the presence of two other members of the Committee. The Report of the Judges Inquiry Committee was laid on the Table of both Rajya Sabha and Lok Sabha on 10 November 2010 along with a copy of the evidence tendered before the Committee and documents marked as Exhibits by the Committee. Printed copies of the Report were also made available to Members of Lok Sabha and Rajya Sabha respectively. Consideration of the motion for presenting an Address to the President praying for the removal of a Judge of High Court by the Council of States in Justice Soumitra Sen’s case: After the laying of the Report, a copy of the Report was forwarded to Justice Soumitra Sen to file his reply. At his request, Justice Soumitra Sen was given approximately one month’s time to file a written reply on the findings of the Report. He gave his reply on 9 December 2011, copies of which were circulated to all the Members of Rajya Sabha. A para in the Parliamentary Bulletin Part-II was also issued. After the laying of the Report, Members gave Notices of Motion for consideration of the Report. Notices of only those Members were entertained who were signatories to the original pending motion. It was also decided to broadly follow the Rules of Procedure and Conduct of Business in the Council of States, governing the ‘Motion on matters of public interest’ in 9
  • respect of the subsequent notices of motion. These notices of motion for consideration of the Report of the Inquiry Committee were admitted by the Chairman and published in the Parliamentary Bulletin Part-II as ‘No-dayyet-named’ motion. The Chairman, Rajya Sabha, in consultation with the Minister of Parliamentary Affairs and the Leader of Opposition, informally decided the date for consideration the motion in the Rajya Sabha. The Business Advisory Committee, in its meeting held on 11 August 2011, allotted four hours for discussion on the motion, excluding the time given to the Judge or his representative to present his arguments before the House. A Parliamentary Bulletin Part-II was issued in this regard and a copy forwarded to the Lok Sabha Secretariat for their information. It was further decided that the motion would be discussed in the House on two days and an opportunity would be given to the concerned Judge to make his submission from the Bar of the House. In view of this, the Lobby Office was requested sufficiently in advance to erect a bar with raised lectern at the appropriate place. The Parliamentary Security Service, Rajya Sabha, was requested to allow the entry of the concerned Judge and his two counsels in the Parliament House, to escort them into the inner lobby and out of the precincts of the House immediately after the submission before the House. Immediately after fixing of the date for taking up the motion in the Rajya Sabha, Secretary-General, informed Justice Sen about the same. Initially, he was given 90 minutes time and was advised to make only oral submission during his presentation in the House. On the day on which the Motions were to be taken up in the House, the original pending motion, along with subsequent motion for consideration of the Report of Inquiry 10
  • Committee, were listed in the names of the movers of the subsequent motion (Annexure VII). On the motion being taken up in the House on 17 August 2011, at the outset, the Chairman made an announcement setting out the procedure to be followed for considering the motion. Thereafter, one of the signatories of the original and subsequent motion, moved both the motions and spoke thereon. The Judge then presented his defence from the bar of the House and withdrew. After that the House proceeded to consider the motion and several Members spoke on it. The discussion on the motion continued for two days i.e. 17 and 18 August and, in the end, the mover of the motion replied to the debate. After the end of the debate, the motion for presenting an Address under article 124, read with clause (4) of article 217 of the Constitution, along with the Address to the President was put to vote. Both were adopted by a majority of total membership of the House and a majority of two-thirds of Members present and voting. On the day the motion was adopted, a message, enclosing a copy of the Address to the President, was communicated to the Lok Sabha. The message was reported in that House which listed its own motion for discussion on 5 September 2011 and included an item in the List of Business for that day accordingly. The concerned Judge, however, resigned from office before the motion could be taken up in the Lok Sabha. The resignation letter being in order, was accepted by the President of India and the Ministry of Law and Justice issued a notification in this regard. Before the Motion could be taken up in Lok Sabha, the fact of resignation of the Judge was reported by the Union Law Minister in the Lok Sabha. Thereafter, the Speaker, Lok Sabha, took the sense of House and decided not to proceed with the Motion and address for removal of Justice Sen. Secretary-General, 11
  • Lok Sabha communicated the fact through a message, which was reported in the Rajya Sabha. The concerned file was, thereafter, placed before Hon’ble Chairman, Rajya Sabha to treat the matter as closed. CONCLUSION The primary role of Parliament is to legislate. However, it has a judicial function too. To deal with the issue of a Judge’s misconduct or proven misbehaviour, within the meaning of Article 124 and 217 of the Constitution, is the prerogative of the Parliament. The removal proceedings against a judge of a High Court or the Supreme Court are no doubt a serious matter. For the first time in the history of the Indian Parliament, the Upper House adopted a Motion for removal of a judge. Justice Soumitra Sen's impeachment proceedings in August 2011 were also the first to be televised live. Speaking on the occasion, the Leader of Opposition in Rajya Sabha termed it as “both historic and sad8”. But by invoking the legitimate constitutional provisions, Rajya Sabha had sought to ensure that the sanctity of our Constitution is maintained and the sovereignty of the people is established through the Parliament. The misbehaviour of an individual Judge could not be allowed to tarnish the integrity of the Judiciary. While an upright and transparent higher judiciary in the country would enhance its image, a disciplined judiciary is an essential condition for strengthening the fabric of democracy. The process of removal of a judge is quite laborious and lengthy and the Parliament exercises this responsibility as a punitive or deterrent measure in the rarest of rare cases. The constitutional and statutory safeguards ensure that judges discharge their duties without fear or favour in the pursuit of delivery of justice. It is, therefore, essential that the principles of transparency and 8 Rajya Sabha Debates, dated 17 August 2011. 12
  • accountability in the functioning of the judiciary are put in place to address such issues. With this objective, the Judicial Standards and Accountability Bill, 2010 has been introduced in the Parliament to lay down judicial standards and provide for accountability of judges. It seeks to repeal the Judges (Inquiry) Act, 1968 while retaining its basic features. It aims to create a statutory mechanism for enquiring into individual complaints against judges of the High Court and the Supreme Court and recommending appropriate action, enabling declaration of assets and liabilities of judges etc.9 __________________ 9 Forty Seventh Report on the Judicial Standards and Accountability Bill, 2010, Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, August 2011. 13
  • References: 1. The Constitution of India 2. The Judges (Inquiry) Act, 1968 3. The Judge (Inquiry) Rules, 1969 4. Note on Procedures No._: Judges Inquiry Committee- Part-I, Rajya Sabha Secretariat: Official Bulletin, New Delhi, December, 2010. 5. Note on Procedures No._: Judges Inquiry Committee- Part-II (Procedure after laying of Report), Rajya Sabha Secretariat: Official Bulletin, New Delhi, October, 2011. 6. M. N. Kaul and S. L. Shakdher, Practice and Procedure of Parliament, 6th Edition, 2009, New Delhi 7. Rajya Sabha Debates, dated 17 August 2011 and 18 August 2011. 8. Resume of the Business transacted by the Rajya Sabha, 223 rd Session (1 August to 8 September 2011), Rajya Sabha Secretariat, New Delhi. 14