We now for the first
time in Indian judicial history have a recommendation from the Chief
Justice of India to the Prime Minister that a sitting judge of the
Calcutta High Court be impeached.
The only other impeachment was that of Justice V Ramaswami, under very
different circumstances. That was exposure initiated by civil society,
this is a move initiated by the Chief Justice of India. The former
motion was defeated as the government of the day supported the motion
but voted against it. This is likely to succeed as it is being
initiated by the Government.
While an impeachment is awaited, the case throws up some very
interesting questions. A three-judge panel set up by the Chief Justice
of India seems to have come to the conclusion that while he was
practising as a lawyer, he was appointed Court Receiver in some pending
litigation and was in that capacity entrusted with some money. It
appears that the allegation is that he misappropriated that money to
personal use. This happened between 1993 and 1995. He was appointed
judge December 2003. The immediate questions arise; How come his
antecedents were not checked prior to his appointment? What was the
nature of the enquiries made before his appointment? Why were the facts
about the money in the receivers account not known to the appointing
authorities or was it known and ignored?
These matters are within the general knowledge of the bench and the
bar. Obviously, the appointment as receiver was by judicial order.
There too there is a problem. Is it right to appoint lawyers receivers?
Is there not a conflict of interest somewhere? Should there not be some
monitoring of lawyers appointed by courts to committees? Is it right
for courts to appoint committees of private lawyers and individuals to
carry out essential judicial functions?
Perhaps the proposed impeachment will not answer these questions.
However, the impeachment will set a precedent and hopefully act as a
deterrent to Judges in future. Judged by the standard to which Justice
Sen is being held, many would fall. The case of the delivery of cash to
a Judge in Chandigarh is too fresh in our minds. Scams about housing
deals are also much reported. The latest PF scandal is awaiting
judicial determination for want of judges to hear the case.
Judicial corruption, alas, in not news anymore.
However one hopes that the move to impeach sends a signal which will be
heard loud and clear. As at present, Justice Sen has refused to resign,
which means he is ready to face impeachment. We have not heard his side
of the story and hence it is too soon to comment on the possible
outcome, but one thing is clear, the required number of MPs will sign
up for the impeachment, as it is a move initiated by the government in
power. Of course the procedure is long drawn out. There will be an
enquiry under the Judges Enquiry Act and under Article 124( 4) of the
Constitution of India, after which the motion will be put to vote.
We still do not have a law under which the complaints can be
entertained. The Chief Justice is resisting such a law, on the ground
that the internal complaints committee is sufficient to meet the need
of judicial accountability. Now the Chief Justice has set out to prove
his point. The battle for accountability cannot end with the
impeachment of Justice Sen.
There is a lack of political will to prosecute judges for corruption.
The prosecution of Justice Sumeet Mukerjee of the Delhi High Court is
still caught up in procedural delays, leading to the impression that
there is a lack of will to bring judges to account.
A vigilant civil society and a free press seem to be our present
mechanisms of accountability. We need to use the right to information
more often, again something the judiciary has resisted.
http://www.lawyerscollective.org/magazine/aug-sept-2008/editorial
Copyright@2008 Lawyers Collective.
