People's Democracy

YECHURY MOVES TWO MOTIONS IN RAJYA SABHA

‘Removal of Justice Soumitra Sen

Is for Strengthening of Judiciary’

Below are excerpts of the speech made by Sitaram Yechury, CPI(M) leader in Rajya Sabha while moving two motions for removal from office of Justice Soumitra Sen of the Calcutta High Court in Rajya Sabha on August 17 2011

I RISE to move these motions in response to the call of duty to my country and my Constitution. Particularly, I rise at a time when waves of protests are taking place all across the  country on the issue of corruption at high places. But, I think, though  by accident and not by design, these motions are coming up for  debate before us in this august House very fortuitously and it is happening at a time when the parliament can also exercise its will and  resolve of fighting corruption in high places. And it is in that context I rise to move these motions, as you have mentioned, fully conscious of the solemnity of the occasion. I also rise with a deep sense of anguish to move these motions.

I shall return to these aspects a little later. Let me first move these motions.  I beg to move the following motion:

This House resolves that an address be presented to the  President for removal from office of Justice Soumitra Sen  of the Calcutta High Court on the following two grounds of  misconduct:-

(iii) Misappropriation of large sums of money, which he  received in his capacity as receiver appointed by the  High Court of Calcutta; and

(iv) Misrepresented  facts  with  regard  to  the  misappropriation of money before the High Court of Calcutta.

I also move the following motion:

This House do consider the Report of the Inquiry Committee in regard to investigation and proof of the misbehaviour  alleged against Soumitra Sen, judge, High Court of  Calcutta which was laid on the Table of the House on the  10th November, 2010.

As I have said earlier, I moved these motions fully conscious of the  solemnity of the occasion. This arises from the fact that it is for the first time that this august House is considering the invocation of our Constitutional provisions for the adoption of such motions. This has not happened in our history so far.  I also wish to categorically state that by moving this motion we are not moving against the judiciary as a whole which we hold in the highest of esteem.

This is not a motion questioning the integrity of the judiciary. This is a motion against one judge who has been found to have indulged in conduct that constitutes the definition of misbehaviour within the meaning of our Constitution. It thus makes this judge unsuitable to occupy the exalted office of a judge of a High  Court.

Individual acts of misbehaviour cannot find refuge behind the integrity of the judiciary as a whole. The issue is one of infallibility and, therefore, the integrity of one individual judge and not the integrity of the judiciary as a whole. This motion is, therefore, moved, as I have said, not to question the integrity but to  strengthen that very integrity of our judiciary from being besmirched by  one act of a single judge.

Our Constitution very rightly provides the judiciary with a very important position and role. People’s faith in the independence and integrity of our judiciary is a very crucial element in the functioning and maturing of our democracy. It would be a very sad day if this faith of the people is undermined due to the acts of  conduct of an individual member. The judiciary is held in high esteem by both the people and the system as it dispenses with justice and is one of the important organs of our State. The judges are correctly assumed to be people of character, honesty and integrity who discharge their duties and functions without fear or favour in the spirit of upholding justice. It is, therefore, a call of duty to the nation to correct any aberration that may lead to the undermining of this faith. I have moved this motion in response to this call of duty.

As I have said, I moved these motions also with a deep sense of anguish. There is no sense of frivolity or elation, neither is there any sense of vindictiveness or retribution. These motions are, therefore, moved with full sanction of our Constitution and in accordance with these provisions.  My grandfather retired as a judge of the Andhra Pradesh High Court when I was eight years old and I learnt at that time that a judge is not a judge only in the court, but a judge is a judge everywhere else in the society and that his acts, inside or outside the court, are a reflection on the judiciary as a whole.

PROVED

MISBEHAVIOUR

I think this spirit has been contained in the Inquiry Report.  I quote from the Inquiry  Committee Report. It says, "A judge of the High Court is placed on a high pedestal in our Constitution simply because judges of High  Courts like judges of the Supreme Court have functions and wield  powers of life and death over citizens and inhabitants  of  this country, such as are not wielded by any other public body or  authority. It is a power coupled with a duty, on the part of the judge to act honourably at all times whether in court or out of court. Citation of case law is superfluous because the categories of 'misbehaviour'  are never closed.

“In interpreting Articles 124 (4) and (5) and the  provisions of the Judges (Inquiry) Act, 1968 and when considering  any question relating to the removal of a judge of the higher Judiciary  from his office, it must not be forgotten that it was to secure to the  people of India a fearless and independent judiciary that the judges of  Superior Courts were granted a special position in the Constitution  with complete immunity from premature removal from the office except by the cumbersome process prescribed in Articles 124 (4)  and (5) read with the law enacted by parliament, the Judges Inquiry  Act, 1968. The very vastness of the powers vested in the Higher Judiciary and the extraordinary immunity granted to judges of the  High Courts and of the Supreme Court require that judges should be  fearless and independent and that they should adopt a high standard  of rectitude so as to inspire confidence in members of the public who seek redress before them. While it is necessary to protect the judges from motivated and malicious attacks, it is also necessary to protect  the fair image of the institution of the Judiciary from such of those judges who choose to conduct themselves in a manner that would  tarnish this image. The word 'misbehaviour' after all is the antithesis of 'good behaviour'. It is a breach of the condition subsequent upon which the guarantee of a fixed judicial tenure rests. High judicial office is essentially a public trust and it is the right of the people through its  representatives in the parliament to revoke this trust but only when there is 'proved misbehaviour'."

This is what I think the Inquiry Committee has proven in its report that it submitted to the chairman of this House and which has been laid on the Table of the  House.  The Constitution also provides specific provisions which are not only essential for the independence of the judiciary, but also for safeguards in the process of the removal of a judge.  These  provisions,  in  my  opinion,  are  aimed  at  strengthening  independence of the judiciary rather than undermining it.

The  provisions for removal, however, are the most stringent and come into  effect only in the case of 'proved misbehaviour'.  I think, this House must refresh  itself with strict safeguards that have been provided by the Constitution in order to  ensure that no particular member of the judiciary is moved against in  a spirit of vendetta or vindictiveness.  These are: (1) At least 50  Members of the Rajya Sabha or 100 Members of the Lok Sabha must  bring a motion in either House; (2) The chairman or the speaker will apply his or her mind before admitting the motion; (3)  Once admitted, the chairman or the speaker will constitute a high level inquiry committee under the Judges Inquiry Act; the concerned  judge will have full opportunity for defence before this Committee; (4)  If the Committee does not find the judge guilty, then the matter ends there with no scope of any parliamentary or judicial review. It is only  when the Committee finds the concerned judge guilty, will the matter  come up before the parliament; (5) The parliament cannot decide the  matter by a simple majority; a two-thirds majority is required. The  concerned judge will have the opportunity to make his defence once again before the parliament, in that House where it is moved. 

Sixthly, both the Houses of parliament will have to decide, by two-thirds of majority, separately  and within the same session of parliament. Finally, even after his removal by the president of India, following the decision, when we  adopt these Motions today, taken up by both the Houses, the judge in question, in accordance with the Supreme Court’s directives, can  seek redress from the Supreme Court by way of a judicial review.  Thus, there is very little ground to apprehend that  justice will not be done to these safeguards. Therefore, as far as the  present case is concerned, we have reached the fifth stage.

The  Report of the Inquiry Committee has been laid before parliament, on  the 10th of September, as I have said, and the Report, unambiguously upholds these charges. I quote:  “Whether the grounds of  misconduct, which Justice Soumitra Sen has been charged with, if proved, amount to misbehaviour under article 124 (4) read with article  217 (1) of proviso (b). In the opinion of the Committee, the grounds  of misconduct, when proved, would amount  to misbehaviour under the relevant articles.” Then, it proceeds to  establish this unambiguously. It enlightens us how this entire concept of  misbehaviour had come in the Act of 1935, in the Constituent Assembly Debates, and how, under the present constitutional  provisions, both the charges against Justice Soumitra Sen have been  held to be valid and unambiguously correct. I quote: “In  view of the findings on Charge I and Charge II above, the Inquiry  Committee is of the opinion that Justice Soumitra Sen of Calcutta High Court is guilty of misbehaviour under article 124 read with proviso (b)  to article 127 (1) of the Constitution of India.” So, after this, I think,  the matter needs to be treated as closed. I would  like to refer to one of the aspects that Justice Soumitra Sen has referred to in his  defence. He invokes, from French history, the Dreyfus Affair. Then, he proceeds  to say, “The march of time has witnessed thousands, all over the  world, wrongly persecuted in the name of justice and for upholding the  rule of law.”

He then proceeds to cast aspersions on the then chief  justice of India, whose letter to the prime minister, seeking removal of  Justice Soumitra Sen, was appended to our Motion, and other  members of the highest judiciary who have either pronounced or  opined against him, to try and establish that “the verdict was already  reserved even before the trials commenced.” Now, the invocation of  Dreyfus Affair, I think, is thoroughly inappropriate. The Dreyfus Affair,  all of us will know, was brought into public domain by the famous  French intellectual and writer, Emile Zola. It was brought about at a  time when the entire battle was taking place in Europe over the  formation of the nation States. It was brought about at a time when  secularism and separation of the Church from the State  was a big affair in the history of Europe. And, at that point of time,  somebody caught in the crossfire cannot be treated as an example of  somebody being wronged, and abstracted from this history. I think, it  will be completely out of context to have brought this in here. But it is  from this process of evolution of human civilization, you have the  French philosopher, Charles Montesquieu, who laid down the  benchmark, in a modern democracy, for checks and balances  between these three important organs, namely, the executive, the  legislature and the judiciary. 

And, it is on that basis that our Constitution has also been drawn up. And, while working out the  mechanics of the three wings to play a joint participatory role in our  Constitution, we define the centrality of the will of the people. The  Preamble begins by saying, “We, the people”. This centrality of the  will of the people, is expressed through its elected representatives in parliament, and this centrality is supreme in our constitutional  scheme of things. And it is with this supremacy today that we are  taking up this matter. And I wish, instead of quoting the Dreyfus  Affair, we would have rather recollected what we stand for today, on  the basis of what law, and whether these laws are being violated. 

But if at all you want to go back into history, I think it is more appropriate to recollect the  debate in the British parliament on the Censure Motion against Robert  Clive when he was charged with amassing huge amounts of money  after the Battle of Plassey and the loot of Kolkata. Thomas Babington Macaulay, the same Macaulay who is known for his  infamous minute on education in colonial India, noted, Clive at that  time was trying to justify what he did to the rapacious loot of Kolkata by saying that this was a city waiting to be taken. Justifying his loot Clive had stated “People welcomed  me with both extended hands, one laden with gold, the other laden with gems and jewellery. By God, Mr Chairman, at this moment, I stand astonished at my own  moderation". Now, according to the law of the land, at that point of time you have violated that law and you have committed acts of misbehaviour.

Another historic case is the impeachment of Warren Hastings. For seven long years the House of Lords heard the case of Warren Hastings after the House of Commons had impeached him. Edmond Burke in one of his most memorable orations, when he introduced this case to the House of Lords stated "Law and arbitrary power are in eternal enmity". And, then, he proceeds to define judges thus: "Judges are guided and governed by the eternal laws of  justice to which we are all subject. We may bite our chains if we will, but  we shall be made to know ourselves and be taught that man is born to be  governed by law and that he who substitutes will in the place of law is an enemy of God." This was more than two centuries ago. Where we affirm faith in our Constitution, the faith was affirmed in God then. So, do not misunderstand when this quotation is quoted here.

FACTS OF

THE CASE

The  labour of argument of Justice Sen's reply has been that the motion  moved by me and 57 other colleagues does not contain any  specific amounts of money that have been misappropriated.  Yes, the motion does not  contain; the motion was appended with the letter of the then chief justice of India to the prime minister where the entire case was  argued. We appended that letter not as a recommendation that you should accept our motion. We appended that letter because it contains all the facts which need not be repeated. If the contention is that these facts are not there, I think, that is wrong. I can read out from the letter of  the then CJI which details all these charges.

The letter says, “On 10th September, 2007, I had asked Justice Soumitra Sen to  furnish his fresh and final response to the judicial observations made  against him. After seeking more time for this purpose, he furnished his response on 28th Septebmer, 2007 requesting that he may be allowed  to resume duties in view of the order of the Division Bench of the Calcutta High Court. Since I felt that a proper probe was required to be made into the allegations to bring the matter to a logical  conclusion, I constituted a three-member committee consisting of  Justice A P Shah, the then chief justice of the Madras High Court,  Justice A K Patnaik, the then chief justice of the High Court of  Madhya Pradesh and Justice R N Lodha, judge of the Rajasthan  High Court. The in-house procedure adopted by the Supreme Court and various High Courts is as envisaged in this procedure to conduct a fact-finding inquiry. The committee submitted its report on such and  such date, etc.” Then, it concluded by saying, I will read out the  main charges: “(1) Shri Soumitra Sen did not have honest intentions  right from the year 1993. Since he mixed the money received as a receiver and his personal money and converted receiver’s money to  his own use, there has been a misappropriation at least temporarily of  the sale proceeds. (a) He received Rs 24,57,000 between 25th  February, 1993 to 10th January, 1995. But, the balance in his account number so and so and dated so and so was only Rs 8,83,963.05. (b)  Further, a sum of Rs 22,83,000 was then transferred by him into so and so account number, name so and so, and the entire amount was withdrawn in a couple of months reducing the balance to a bare  minimum of Rs 811, diverting the sale proceeds for his own use with  dishonest intentions. (c) He gave false explanation to the court that  an amount of Rs 25 lakhs was invested from the account where the sale proceeds were kept whereas in fact the amount of Rs.25 lakhs was withdrawn from Special Officer’s account number so and so and  not from the account number so and so in which the sale proceeds were deposited. (d) Mere monetary deposit under the compulsion of judicial orders does not obliterate breach of trust and misappropriation  of receiver’s funds for personal gain. (e) The conduct of Shri Soumitra  Sen has brought disrepute to the high judicial office and dishonour for   the institution of judiciary undermining the faith and confidence  reposed by the public in the administration of justice.” Then, he goes on to say, “A detailed representation was made by Justice Soumitra  Sen on 25th February, 2008 and a collegium consisting of himself, that is, chief justice of India, Justice B N  Aggarwal and Justice Ashok  Bahl, senior most judges of the Supreme Court, gave a hearing to Shri  Soumitra Sen and reiterated the advice given to him to submit his  resignation or seek voluntary retirement on or before 2nd April, 2008.  However, vide his letter dated 26th March, 2008, Justice Soumitra Sen expressed his inability to tender resignation or seek voluntary  retirement.”

INVIOLABLE

JUSTICE

So, the charges are very specific and an in-house Inquiry Committee consisting of two chief justices and a justice of a High Court has gone into it and established it. A collegium of senior most judges of the Supreme Court has re-established them.  Now, the Inquiry Committee constituted by chairman of Rajya Sabha has, once again, unambiguously established it. So, I do not think there is any degree of ambiguity on the veracity of these charges. Since they stand established by three separate, independent and duly constituted  authorities, I think, this is a matter that should be accepted by us as the final issue that these charges have been now proved.

Therefore, in view of this, I feel that there is no other option but for us to proceed with these motions. We have to move against a judge in order to strengthen the integrity and safeguard the  institution of our judiciary. I would like to appeal and go back to the speech of Edmund Burke in the House of Lords when he finally makes the appeal to the Lordships, and I quote, “My Lords, if you must fall, you may so fall. But if you stand, and stand, I trust you will, may you stand as unimpeached in honour as in power. May you stand not as a substitute for virtue, but as an ornament of virtue, as a security for virtue. May you stand as a sacred temple for the perpetual residence of inviolable justice.” And this is the inviolable justice that this  House today represents when it converts itself into a Bar, when it takes up these Constitutional provisions, it is the temple of inviolable justice.

And, therefore, a sacred temple for the perpetual residence of inviolable justice, that is what this House must be. Justice and temple are used in the terms that Pandit Nehru used after Independence when he talked of our important public sector constructions as the temples of modern India. These are the temples of modern India that our Republic created. I say this with all honour at my command and all  the commitment at my command that the Republic that was founded  in India, I was born after that, was a far-reaching  vision in modern civilisation and society. Way back, more than six decades ago, we had given universal adult franchise in our country,  which was then considered absolutely abnormal and unusual. We  must recollect, when the president of USA comes and signs  in our Golden Book in our Central Hall, all of us are very happy, when  he says, “Greetings from the oldest democracy to the largest  democracy”. But, remember, the African Americans in the USA  had the universal right to vote granted to them one year after president  Obama was born. One year after he was born, they were given the universal right to vote. We gave it way back in 1950. That is the faith that we had in our people, we have in our people. And that is the faith that has to be exercised in our constitutional scheme of things through the elected representatives, and it is that faith that today unfortunately is being questioned by some quarters that this august parliament is not competent or not capable enough to deal with corruption in high places, and, therefore, it cannot and will not  move against corruption in high places. Therefore, we must set the precedent. We must give that confidence to the people of India. We owe it to the people of India that we will take action on these motions  precisely in order to strengthen our Republic and it is for strengthening  of our Republic, I would now commend these motions for  adoption by this House, and commend them to make sure that we  convey not only to the people of India but also to the people of the  world and modern human civilisation that the Indian parliament is a sacred temple, it is the perpetual residence of an inviolable justice.  And this has to be established. With this appeal, I commend these motions for your consideration and adoption by this House.