Sen and sensibility
edit, Governance Now, Sept 1-15, 2011
Probity and accountability calls for change in the way higher judiciary is appointed and disciplined
It was a rare and historic sight when Justice Soumitra Sen of Calcutta high court stood up to defend himself in Rajya Sabha on August 17. For the second time in independent India a member of the higher judiciary was facing impeachment proceedings – the only way an errant judge can be removed from office. The last time it happened was way back in 1993, when a supreme court judge, Justice V Ramaswami, faced impeachment but escaped unpunished because the ruling Congress party decided to ignore serious corruption charges against him and abstained from voting to defeat the move of the opposition parties. If the move succeeds this time, as is evident from the manner in which the impeachment motion was carried in Rajya Sabha, Justice Sen would become the first one to be thus removed from office to which he clings on despite two grave charges against him – one, he misappropriated money in his custody as a court-appointed receiver and two, he misrepresented facts about this misappropriation before the Calcutta high court. Three different inquiries – an in-house inquiry by the high court, an inquiry by three supreme court judges and a judges inquiry committee appointed by the Rajya Sabha chairman – found him guilty. Yet, when Justice Sen stood up to defend himself, he pleaded that he should not be made a “sacrificial lamb” in the name of cleansing the judiciary.
Sadly, the rarity of impeachment proceedings against a judge does not suggest impeccable integrity of the higher judiciary. Many serious corruption charges have come to be made against many of the members in recent times. Justice Sen himself pointed out two – provident fund scam of the Allahabad high court and Justice Nirmal Yadav of the Punjab and Haryana high court for whom a briefcase containing Rs 15 lakh was delivered wrongly at the residence of another judge. He didn’t mention Justice P D Dinakaran, who was accused of land grabbing and worse but continued for many years as chief justice of Karnataka and Sikkim high courts, tried to scuttle inquiry against him and then resigned on July 29 this year, a day before an inquiry committee appointed by the Rajya Sabha chairman was to begin its probe against him. A few days later, he even sought to withdraw the resignation but the government put its foot down. Even more scandalous is the contempt case pending before the apex court after senior advocate Prashant Bhushan publicly alleged that half of the past 16 to 17 chief justices of India were corrupt.
The rarity of impeachment proceedings rather reflects failure of the system to discipline the higher judiciary and bring accountability and transparency in their working. Impeachment is particularly tough to succeed as it requires fulfillment of stiff conditions - a motion has to be moved by 100 Lok Sabha or 50 Rajya Sabha members, following which an inquiry committee has to confirm the charges and then the support of a majority of members of both houses of parliament is required to pass the motion. It is tricky too, as was evident in Justice Ramaswami’s case, because politicians in power are wary of antagonising higher judiciary. In the present case, the Bahujan Samaj Party voted against Justice Sen’s impeachment. Fortunately, it did not change the outcome.
Needless to say, there is an urgent need to change the present system of not only disciplining the higher judiciary but also the manner in which they are appointed. For the first, parliament must take up and pass the pending Judicial Standards and Accountability Bill, which envisages simplifying the process to act against errant judges, without delay. The bill does require modifications to make the proposed oversight mechanism provided in it to be truly independent and effective. Similarly, there is a need to rethink on the collegium system of appointing higher judiciary, which is an opaque and in-house process in which judges appoint themselves. Its failure is evident in both the appointment of Justice Sen to the Calcutta high court and in its recommendation to elevate Justice Dinakaran to the apex court. Their misconducts predated these moves by the collegium. The answer could be found in setting up an independent judicial commission, a proposal which has been debated for years but no government has shown enough courage to actually set it up. These two moves will go a long way in addressing most of the issues.
edit, Governance Now, Sept 1-15, 2011
Probity and accountability calls for change in the way higher judiciary is appointed and disciplined
It was a rare and historic sight when Justice Soumitra Sen of Calcutta high court stood up to defend himself in Rajya Sabha on August 17. For the second time in independent India a member of the higher judiciary was facing impeachment proceedings – the only way an errant judge can be removed from office. The last time it happened was way back in 1993, when a supreme court judge, Justice V Ramaswami, faced impeachment but escaped unpunished because the ruling Congress party decided to ignore serious corruption charges against him and abstained from voting to defeat the move of the opposition parties. If the move succeeds this time, as is evident from the manner in which the impeachment motion was carried in Rajya Sabha, Justice Sen would become the first one to be thus removed from office to which he clings on despite two grave charges against him – one, he misappropriated money in his custody as a court-appointed receiver and two, he misrepresented facts about this misappropriation before the Calcutta high court. Three different inquiries – an in-house inquiry by the high court, an inquiry by three supreme court judges and a judges inquiry committee appointed by the Rajya Sabha chairman – found him guilty. Yet, when Justice Sen stood up to defend himself, he pleaded that he should not be made a “sacrificial lamb” in the name of cleansing the judiciary.
Sadly, the rarity of impeachment proceedings against a judge does not suggest impeccable integrity of the higher judiciary. Many serious corruption charges have come to be made against many of the members in recent times. Justice Sen himself pointed out two – provident fund scam of the Allahabad high court and Justice Nirmal Yadav of the Punjab and Haryana high court for whom a briefcase containing Rs 15 lakh was delivered wrongly at the residence of another judge. He didn’t mention Justice P D Dinakaran, who was accused of land grabbing and worse but continued for many years as chief justice of Karnataka and Sikkim high courts, tried to scuttle inquiry against him and then resigned on July 29 this year, a day before an inquiry committee appointed by the Rajya Sabha chairman was to begin its probe against him. A few days later, he even sought to withdraw the resignation but the government put its foot down. Even more scandalous is the contempt case pending before the apex court after senior advocate Prashant Bhushan publicly alleged that half of the past 16 to 17 chief justices of India were corrupt.
The rarity of impeachment proceedings rather reflects failure of the system to discipline the higher judiciary and bring accountability and transparency in their working. Impeachment is particularly tough to succeed as it requires fulfillment of stiff conditions - a motion has to be moved by 100 Lok Sabha or 50 Rajya Sabha members, following which an inquiry committee has to confirm the charges and then the support of a majority of members of both houses of parliament is required to pass the motion. It is tricky too, as was evident in Justice Ramaswami’s case, because politicians in power are wary of antagonising higher judiciary. In the present case, the Bahujan Samaj Party voted against Justice Sen’s impeachment. Fortunately, it did not change the outcome.
Needless to say, there is an urgent need to change the present system of not only disciplining the higher judiciary but also the manner in which they are appointed. For the first, parliament must take up and pass the pending Judicial Standards and Accountability Bill, which envisages simplifying the process to act against errant judges, without delay. The bill does require modifications to make the proposed oversight mechanism provided in it to be truly independent and effective. Similarly, there is a need to rethink on the collegium system of appointing higher judiciary, which is an opaque and in-house process in which judges appoint themselves. Its failure is evident in both the appointment of Justice Sen to the Calcutta high court and in its recommendation to elevate Justice Dinakaran to the apex court. Their misconducts predated these moves by the collegium. The answer could be found in setting up an independent judicial commission, a proposal which has been debated for years but no government has shown enough courage to actually set it up. These two moves will go a long way in addressing most of the issues.
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