Wednesday, September 24, 2008

Justice Soumitra Sen case: Some puzzling questions

While writing on the Soumitra Sen case, I was puzzled by the propriety of the CJI writing to the Prime Minister on the issue. The CJI's request to the PM to initiate the process of removal of Justice Sen based on the in-house Committee report appears to raise certain jurisdictional issues. Under the Judges Inquiry Act 1968, only Parliament through Speaker or the Chairman of Rajya Sabha (or both) can set up a committee of three persons to inquire into the conduct of a Judge, and the committee's report is binding on Parliament. If this committee finds the Judge innocent, then Parliament cannot proceed further. Therefore, can the CJI or the in-house committee usurp the role of this statutory committee? What if this committee finds the Judge innocent or finds the charges against him not serious enough to warrant his removal?

In the V.Ramaswami case too there was an inhouse committee, but this committee did not find prima facie evidence against the Judge, as the probe was already going on when the committee completed its work. Seervai, however, found this improper, as in his view, charges were prima facie true, as the Judge did not reply to the charges. But Seervai found Ramaswami's decision not to subject himself to the jurisdiction of the inhouse committee as legally correct, as the committee had no legal basis.

The present inhouse committee of the Supreme Court draws its legitimacy from the Ravichandran Iyer judgment. But this judgment is only applicable to cases which warranted disciplinary action other than removal from office, which it conceded only Parliament is empowered. In Sen's case, the inhouse committee wanted him to resign, and when he refused, it recommended his removal, a conclusion which the CJI has endorsed in his letter to the PM. Therefore, did the inhouse committee and the CJI exceed the mandate of Ravichandran Iyer judgment of the Supreme Court? Rather than recommend his removal, the inhouse committee could have made its findings and the report public, even if its conclusion points out that the charges against the Judge are so serious that there is no appropriate punishment in the in-house procedure. The CJI, then, would have had no occasion to request the PM to initiate the process of removal, as the report of the inhouse committee, already in the public domain, would have well forced Parliament to take notice of the issue and initiate action.

The inhouse committee report and the CJI's letter, in my view, have led to certain incongruities. By making their position known, the CJI, and the members of the inhouse committee, and the SC collegium which heard Sen have all made themselves ineligible for inclusion in the Inquiry Committee to be constituted by the Speaker or the Chairman. The Inquiry Committee's composition is clear: two of the three members have to be from Judiciary, one from the Supreme Court, the other from the High Courts, and the third an eminent Jurist (usually the former Judge). In the face of public recommendation from the inhouse committee, the collegium and the CJI, will two of the three members of this committee be able to examine the charges against Sen objectively? In other words, will the inhouse committee inspire the confidence of Justice Sen about its impartiality?
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