Bringing judges to justicehttps://indianexpress.com/article/opinion/columns/bringing-judges-to-justice/

Bringing judges to justice

Justice Sen might make history if he is impeached. But we lack moderate mechanisms to deal with judicial misconduct

Parliament is likely to take up the motion for removal of Justice Soumitra Sen of the Calcutta high court next week. The other motion related to Justice Dinakaran will likely be irrelevant if his resignation is accepted. What are processes and issues related to the impeachment of judges?

The process has to tread a fine balance between the independence of judges and their accountability. It is important that judges are free of any pressures that can affect their freedom to deliver fair justice. And so,the judges of the higher courts — the Supreme Court and high courts — are assured of their term of office and their salaries and emoluments cannot be reduced. The only action that can be taken by a non-judicial body is their removal through a motion in Parliament.

The process of removal is specified by the Judges (Inquiry) Act,1968. The process starts with a motion signed by either 50 members of the Rajya Sabha or 100 members of the Lok Sabha regarding the misbehaviour of the judge. The Chairman of the Rajya Sabha or Speaker of the Lok Sabha then forms an investigation committee consisting of three members: a Supreme Court judge,a high court chief justice,and an eminent jurist. This committee will frame charges of misbehaviour,and give an opportunity to present a written statement of defence. The judge shall also be given the opportunity to cross examine witnesses,and defending himself. The committee shall,then,present its findings to the Chairman or Speaker.

If the committee’s findings are that there was a case of misbehaviour,Parliament may continue with the motion. The motion has to be passed by each House with two-thirds majority (and with half the total membership). This is followed by an address to the president for removal. Both Houses have to pass the motion and present the address within the same session of Parliament.

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Two features are notably absent in this process. There is no provision for any disciplinary action against a judge that falls short of his removal from office. Second,there is no provision for any citizen to complain against a judge. The Judicial Standards and Accountability Bill,which is currently pending in Parliament,includes measures that address these gaps. It forms a national judicial oversight committee and scrutiny panels in the Supreme Court and every high court. Any person may make a complaint to the oversight committee,which will ask the scrutiny panel to vet the complaint. If there is prima facie evidence to investigate the complaint,the oversight committee will set up an investigation committee. After the investigation,the oversight committee may (a) find that there is no basis to the complaint,(b) issue advisories or warnings to the judge,or (c) recommend his removal. In addition to this process,the bill retains the mechanism of a motion in either house of Parliament,which will be investigated by the oversight committee. There is no proposed change in the final stage of removal — two-thirds majority votes in each house,followed by a presidential order of removal.

Till date,there has been just one case of an impeachment motion in India. In February 1991,the Lok Sabha initiated a motion against Justice Ramaswamy of the Supreme Court,and the Justice Sawant committee was formed. Though the Lok Sabha was dissolved before the committee started its work,the Supreme Court decided that the motion will not lapse. The committee submitted its report to the next Lok Sabha in 1992,and held that some charges were proved. However,the motion did not find the required majority,and failed.

The facts of the Justice Sen case are as follows. In February 2009,58 members of the Rajya Sabha gave notice of a motion charging him on two grounds of misbehaviour: misappropriation of large sums of money which he received as a receiver of the Calcutta high court,and misrepresenting the related facts to the Calcutta high court. The Rajya Sabha Chairman constituted a committee to investigate the charges,which found him guilty of misbehaviour on both grounds. Parliament will now examine the inquiry report,hear the arguments,and decide whether to remove him.

The writer is with PRS Legislative Reseach,New Delhi