Joginder Singh Toor

IN quick succession, the Chief Justice of India has recommended impeachment of Justice Soumitra Sen of the Calcutta High Court for his misconduct and permitted questioning of the two judgers of Punjab and Haryana High Court in case of delivering money at judge's residence. This is proving bad time for Indian judiciary. There is already a case about the Gaziabad Provident Fund scandal involving 34 session's judges, high court judges and a Supreme Court judge. It involved Rs 23 crore of Provident Funds belonging to employees’ which had been fraudently withdrawn. It sent shock waves through out India. It should be a matter of grave worry. Why cherished values are being betrayed so often by those who are supposed to preserve and promote them.
Transparency International in its Global Corruption Report, 2007 found the reputation of Indian judiciary tarnished. India ranks 72 in 2007 amongst 180 countries against 70 out of 163 in 2006, only slight improvement. India ranks below South Africa, Namibia, much below the developed countries led by Denmark, Finland, Singapore and Sweden.
Obviously India has been ignoring the advice and opinion of many a jurists and recommendations of Commissions and Committees set up by the Government itself.
The much acclaimed Malimath Committee recommended in 2003-
"The Committee is deeply concerned about the deterioration in the quality of judges appointed to the courts at all levels……… We need a process to ensure objectivity and transparency in this behalf. This requires laying down the precise qualifications, experience, qualities and attributes that are needed to in a good Judge and also the prescription of objective criteria to apply to the overall background of the candidate. The analysis and discussions preceding their recommendations should be recorded so as to ensure objectivity and transparency in the matter of selecting the candidate."

"(1) Qualification prescribed for appointment of Judges at different levels should be reviewed to ensure that highly competent Judges are inducted at different levels.
(2) Special attention should be paid to enquire into the background and antecedents of the persons appointed to Judicial Offices to ensure that persons of proven integrity and character are appointed."

"A high power Committee should be constituted to lay down the qualifications, qualities and attributes and attributes regarding character and integrity that the candidate for the High Court judgeship should possess and specify the evidence or material necessary to satisfy these requirements. Reasons should be recorded with reference to these criteria by the selecting authority."

Had the recommendations been kept in mind, the situation like the one, created by the appointment of Soumitra Sen as judge and consequent recommendation for his impeachment would not have arisen.
Mr. Soumitra Sen, while practicing as an advocate, was appointed as a receiver in case filed by Steel Authority of India for recovery amount, collected around Rs.33 lakh and kept it in his personal account, and allegedly misused the money. A single judge, who heard the case, concluded that Mr. Sen had converted and appropriated the amount without the court authority, and his conduct was nothing short of criminal misappropriation. Mr. Sen deposited Rs.57, 65,204.
Subsequently he became Judge of the High Court. His track record, his past conduct, his being guilty of criminal misappropriation a punishable cognizable offence u/s 406, 409 IPC attracting sentence up to 10 years were ignored while appointing him as Judge.
The discovery of his misconduct by the subsequent Chief Justice of the Calcutta High Court and report to the Supreme Court, resulting in an in-house three Judge Committee report, found him guilty of misconduct and advised him to resign which he refused presumably on the ground that the misconduct existed on the day of his appointment and that the same was waived-off.
The Chief Justice of India, left with no option, recommended to the Govt. of India to initiate impeachment proceedings against Mr. Sen.
The constitution of the India provides in Article 124 and 218 that judges of the Supreme Court and the high courts cannot be removed except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that house and by a majority of not less than two-third of the members of the House present and voting.
It was left to the Parliament to regulate the procedure for presentation of an address and investigation and proof of misbehaviour.
The Parliament of India took 18 years to regulate the procedure. The Judges Enquiry Act came into force on 5th December,1968, providing for a motion for presenting an address to the President to be signed by not less than 100 members of the Lok Sabha and in case of notice of motion given in the Rajya Sabha by not less than 50 members. The Act does not define misconduct or misbehaviour. Nor the fact as to when and which misconduct whether as a Judge or in a position prior to appointment are the relevant factors. Mr. Sen's insisting on contesting the motion in the Parliament House is based on these ambiguities.
That fact that impeachment procedure is impracticable and it has not therefore been able to remove any judge for misconduct, howsoever, grave and how strongly proved by the investigating committee consisting of even Supreme Court Judges, may have been.
Conscious of the difficult constitutional position, the Parliament is in the process of amending the existing law or enacting a new National Judicial Council. It should hang on no more as it has already taken 20 long years. The Parliament earlier took 18 years to regulate the procedure in enacting the Judges Enquiry Act in 1968. It should worry about the people's diminishing faith in the institution of judiciary. Public interest cannot be sacrificed at the altar of political expediency.
[Joginder Singh Toor is senior advocate and public affairs commentator jogindersingh_toor@yahoo.com]

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