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
2
3
Article 124(4) of the Constitution.
Article 124(5) of the Constitution.
3
The Judges (Inquiry) Bill, 1964 was formulated, laying down the
procedure as contemplated by the above provision of the Constitution and
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
4
M.N. Kaul and S. L. Shakdher, Practice and Procedure of Parliament, 6th Edition, 2009, New
Delhi, pp. 1115 to 1117.
4
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.
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
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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.
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
5
M. N. Kaul and S. L. Shakdher, Practice and Procedure of Parliament, 6th Edition, 2009, New
Delhi, p. 1115.
6
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
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.
6
“Sen, First Judge impeached by Rajya Sabha”, Indian Express, New Delhi, 18 August 2011.
7
Resume of the Business transacted by the Rajya Sabha, 223 rd Session (1August to 8 September
2011), Rajya Sabha Secretariat, New Delhi.
7
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
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
8
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:
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.
9
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
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.
10
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
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
11
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,
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
8
Rajya Sabha Debates, dated 17 August 2011.
12
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
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, 223rd Session
(1 August to 8 September 2011), Rajya Sabha Secretariat, New Delhi.
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