Every Removal Attempt This Book Can Document

Two: Justice Soumitra Sen, High Court at Calcutta

Sourced from the Chief Justice of India's own letter, reproduced verbatim in Additional District and Sessions Judge 'X' v. Registrar General, High Court of Madhya Pradesh, (2015) 4 SCC 91.

This is the best documented judicial accountability matter in the whole tree, because the letter sets out every step.

The sequence, from the letter of 4 August 2008 by Chief Justice K.G. Balakrishnan to the Prime Minister:

Newspaper reports appeared about the Judge's conduct; the then Chief Justice of the Calcutta High Court withdrew judicial work from him and wrote on 25 November 2006 to the predecessor Chief Justice of India for appropriate action.

On 1 July 2007 the Chief Justice of India sought a comprehensive report and the Chief Justice's views; on 12 July 2007 the Judge called on him and explained his conduct verbally; his written report followed on 20 August 2007; a fresh and final response was called for on 10 September 2007 and furnished on 28 September 2007, asking to resume duties.

Feeling that "a deeper probe was required", the Chief Justice of India constituted a three member Committee of Justice A.P. Shah, Chief Justice of the Madras High Court, Justice A.K. Patnaik, Chief Justice of the High Court of Madhya Pradesh, and Justice R.M. Lodha, Judge of the Rajasthan High Court, "as envisaged in the 'In-House Procedure'", to conduct a fact finding enquiry in which the Judge could appear and have his say. Chapter 1680 is that procedure.

The Committee reported on 1 February 2008, after calling for records and hearing the Judge in person. Its conclusions, as the letter reproduces them, were that he had not had an honest intention from 1993, having mixed money received as a Receiver with his personal money and converted it to his own use; that there had been misappropriation, at least temporary, of the sale proceeds, with figures set out; that he had given a false explanation to the court about which account a sum had been drawn from; that monetary recompense under the compulsion of a judicial order does not obliterate breach of trust and misappropriation of a Receiver's funds for personal gain; and that his conduct had brought disrepute to the high judicial office and dishonour to the institution of judiciary. In the Committee's opinion the misconduct disclosed was so serious that it called for initiation of proceedings for removal.

Then the step that shows what the in-house procedure actually is. The report was forwarded to the Judge and he was advised to resign or seek voluntary retirement. He sought reconsideration and a personal hearing; on 16 March 2008 a Collegium of the Chief Justice of India and the two seniormost Judges heard him and reiterated the advice, giving him until 2 April 2008; by letter of 26 March 2008 he expressed his inability to resign or retire.

And only then did the constitutional route open. The Chief Justice of India wrote to the Prime Minister recommending that "the proceedings contemplated by Article 217(1) read with Article 124(4) of the Constitution be initiated."

How far it got, and how it ended. The 2015 judgment records it in one sentence: "Based on the communication addressed by the Chief Justice of India, impeachment proceedings were actually initiated against Mr. Justice Soumitra Sen, under Article 124 of the Constitution of India. Consequent upon his resignation, during the course of deliberation on the impeachment proceedings in Parliament, the impeachment proceedings were dropped as having been abated."

Note the legal point buried in that sentence, and an examiner will reward it. Resignation ends the proceedings, because the whole object of the machinery is removal from an office, and a Judge who has left the office cannot be removed from it. Chapter 1550's point that removal is the only way to curtail the tenure has a corollary: the Judge himself can end his tenure at any time, and thereby end the inquiry. That is why the in-house procedure's operative step is advice to resign.

Three: Justice P.D. Dinakaran, High Court of Karnataka

Sourced from Justice P.D. Dinakaran v. Hon'ble Judges Inquiry Committee, (2011) 8 SCC 380, worked in chapter 1640.

How far it got. Fifty members of the Council of States; motion admitted by the Chairman; a Committee notified on 15 January 2010 of Justice V.S. Sirpurkar, Justice A.R. Dave and Mr P.P. Rao, Senior Advocate; charges framed under section 3(3); an objection to the jurist on the ground of bias, held reasonable but belated; the petition dismissed and the Chairman requested to nominate another jurist, the reconstituted Committee to proceed on the charges already framed.

How it ended: this tree holds no later document, and the book therefore states no outcome. As at the judgment of 5 July 2011 the proceedings had progressed only to the framing of charges and the Committee was yet to record its findings.

What it decided for the law. That a Judge under inquiry has the ordinary protection against bias, on the real likelihood test, and that an objection loses its value if it is not made promptly.

Four: the Madhya Pradesh complaint of 2014

Sourced from Additional District and Sessions Judge 'X' v. Registrar General, High Court of Madhya Pradesh, (2015) 4 SCC 91.

The Court anonymised both sides and this book follows it. The petitioner is Additional District and Sessions Judge 'X', a former member of the Madhya Pradesh Higher Judicial Service who had practised for fifteen years at Delhi and stood second in the merit list released on 22 March 2011; the respondent is "Justice 'A'", a sitting Judge of the High Court. The Court's stated reason is that the authenticity of the allegations, expressly disputed, would be affirmed or repudiated only after due process, so the identity of neither should be disclosed: her dignity and his reputation deserve the same protection. Reproducing a name the Court withheld would be a poor answer as well as a wrong one.

How far it got. Not to Parliament at all. It was a complaint of sexual harassment dealt with under the in-house procedure, and it reached the Supreme Court because the procedure had been applied wrongly.

What the Court held, and it is chapter 1680's material. The Chief Justice of the High Court had travelled beyond the determinative authority vested in him at stage one, whose limit is to decide whether a deeper probe is required, by constituting a two Judge Committee and beginning an in-depth probe, which belongs to the second stage and is carried out under the authority of the Chief Justice of India. The Court directed that the Judge be divested of administrative and supervisory control over the witnesses, in order that the investigation be fair and just; held that the Chief Justice of the High Court, having assumed a firm position on facts in the complaint, ought not to be associated with the procedure in that case; and left it to the Chief Justice of India to reinitiate the process, vesting the High Court Chief Justice's role in the Chief Justice of some other High Court or assuming it himself.

The pattern, and the reasons

On this book's record, every removal motion has failed to produce an address to the President, and so no judge has been removed under article 124(4) in any matter this tree documents. It is a statement about this record, and a candidate should frame it that way rather than as a claim about every notice ever given.

Four reasons, and each is sourced in the book.

One, the design intends difficulty. C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457: "The founding fathers of the Constitution advisedly adopted cumbersome process of impeachment as a mode to remove a Judge from office for only proved misbehaviour or incapacity which implies that impeachment process is not available for minor abrasive behaviour of a Judge. It reinforces that independence to the Judge is of paramount importance to sustain, strengthen and elongate rule of law." The Court adds that Parliament "sparingly resorts to the mechanism" as an extreme measure, and that in all common law jurisdictions removal by impeachment is the accepted norm for serious acts of judicial misconduct, designed to do as little damage as possible to judicial independence.

Two, the vote is the proof. Section 6(3), chapter 1600: a Committee's finding of guilt is a recommendation, and only adoption by each House on the special majorities makes the misbehaviour deemed proved. Ramaswami is what that costs.

Three, resignation abates everything. Soumitra Sen. The office is the target, and the Judge controls the office.

Four, the threshold and the arithmetic are severe. A hundred members of the House of the People or fifty of the Council of States must sign, chapter 1570; and then a majority of the total membership AND two thirds of those present and voting, in EACH House, in the SAME session. As Tulzapurkar J. put it in a passage the Constitution Bench reproduced in K. Veeraswami v. Union of India, (1991) 3 SCC 655, "One hundred Members of the Lok Sabha or fifty Members of the Rajya Sabha alone can initiate any action on such allegations."

And the consequence the Court itself drew from all this, in the same passage: there is a need for "proper machinery possessing legal sanction ... for enabling a proper inquiry against an alleged errant Judge less cumbersome than the near impeachment process contemplated by Art. 124(4) and (5)." That machinery is chapter 1670.

A worked example

An examiner asks for "appropriate examples of Judicial Inquiries."

Give the two senses first, chapter 1560: an inquiry INTO a judge and an inquiry BY a judge.

For the first sense, give the four above, each in three lines: what triggered it, how far it got, how it ended.

Rank them by what each teaches. Ramaswami for the whole machine and the three decisions; Soumitra Sen for the in-house procedure feeding the constitutional one, and for abatement on resignation; Dinakaran for bias and promptness; the 2014 complaint for the limits of a High Court Chief Justice's authority.

For the second sense, chapters 1730 to 1750 supply commissions of inquiry headed by judges, and chapter 1750 the magisterial inquiry into a custodial death.

And close with the assessment, not the list. The examiner's word is "in detail", and detail means dates, documents, holdings and an honest statement of what the record does not show.

What beginners get wrong

Naming judges the record does not name. In the 2014 matter the Court itself withheld both names, and gave its reasons.

Saying a resignation is an acquittal. It is an abatement: the proceedings are dropped, and no finding is ever adopted.

Saying the Committee removed or cleared anyone. In none of these four did a Committee's finding decide anything by itself.

Treating the in-house procedure and the constitutional procedure as alternatives. Soumitra Sen shows them in sequence: the in-house inquiry, then advice to resign, then, on refusal, the recommendation to initiate removal.

Offering a count of notices of motion. Unless you hold the record, do not; say what you can document.

Quick revision

Ramaswami: 108 members, Ninth Lok Sabha, 27 February 1991 and 12 March 1991; Sawant, Desai, Chinnappa Reddy; three Supreme Court decisions; motion failed, no address, not removed.

Soumitra Sen: work withdrawn by the High Court Chief Justice, 25 November 2006; CJI's probe from 1 July 2007; three Judge in-house Committee of Shah, Patnaik and Lodha; report 1 February 2008 finding misappropriation of a Receiver's funds and a false explanation to the court; advice to resign, Collegium hearing 16 March 2008, refusal 26 March 2008; CJI's letter to the Prime Minister 4 August 2008 under art 217(1) with art 124(4); proceedings initiated and dropped as abated on his resignation during the deliberations.

Dinakaran: fifty members of the Council of States; Committee notified 15 January 2010; charges framed; bias objection reasonable but belated; petition dismissed, jurist replaced by request; no later document in this tree, so no outcome stated.

The 2014 complaint: Addl. D&SJ 'X' and Justice 'A', names withheld by the Court; the High Court Chief Justice exceeded stage one by constituting a two Judge Committee; the Judge divested of administrative and supervisory control over witnesses; the process to be reinitiated by the Chief Justice of India.

Why none succeeded: the process is advisedly cumbersome and sparingly resorted to; section 6(3) makes the vote the proof; resignation abates; and the thresholds and majorities are severe.

Test yourself

1. Work the Soumitra Sen matter in full. It is the best documented judicial accountability matter in this book, because the Chief Justice of India's letter of 4 August 2008 to the Prime Minister, reproduced verbatim in the 2015 Supreme Court judgment, sets out every step. Newspaper reports appeared about the judge's conduct as a Receiver; the Chief Justice of the Calcutta High Court withdrew judicial work from him and wrote on 25 November 2006 to the then Chief Justice of India. His successor sought a comprehensive report on 1 July 2007, met the judge on 12 July, received his report on 20 August and a final response on 28 September 2007.

Feeling that a deeper probe was required, he constituted a three member Committee under the in-house procedure, of Justice A.P. Shah, Justice A.K. Patnaik and Justice R.M. Lodha, which heard the judge in person and reported on 1 February 2008 that he had lacked honest intention from 1993, had mixed a Receiver's money with his own and converted it to his use, had misappropriated the sale proceeds at least temporarily, had given a false explanation to the court about the account from which a sum was drawn, and had brought disrepute to the high judicial office; and that the misconduct was so serious as to call for removal proceedings. The report was sent to him and he was advised to resign or take voluntary retirement; a Collegium of the Chief Justice and the two seniormost judges heard him on 16 March 2008 and reiterated the advice; he refused on 26 March 2008. The Chief Justice of India then wrote recommending that proceedings under article 217(1) read with article 124(4) be initiated. Proceedings were initiated and were dropped as having abated on his resignation during the deliberations in Parliament.

2. Why does a resignation end the proceedings? Because the object of the machinery is removal from an office. Article 124(4) empowers the President to remove a judge from his office by an order passed after an address by both Houses, and a judge who has ceased to hold the office cannot be removed from it. The corollary of the rule that removal is the only way in which the fixed tenure of a judge may be curtailed is that the judge himself may end that tenure at any moment by resigning, and thereby end the inquiry. That is why the operative step of the in-house procedure is advice to resign or to seek voluntary retirement rather than any sanction, and why in the Soumitra Sen matter the proceedings, once begun, were dropped as abated.

3. Why has no removal motion in this record produced an address to the President? Four reasons. First, the design intends difficulty: the Court has said that the founding fathers advisedly adopted a cumbersome process, available only for proved misbehaviour or incapacity and not for minor abrasive behaviour, precisely because the independence of the judge is of paramount importance, and that Parliament resorts to it sparingly as an extreme measure. Second, section 6(3) makes the adoption of the motion by each House, and not the Committee's finding, the event that deems the misbehaviour proved, so a judicial finding of guilt decides nothing by itself, which is what the Ramaswami proceedings demonstrated. Third, a resignation abates everything, as in the Soumitra Sen matter. Fourth, the thresholds are severe: a hundred members of the House of the People or fifty of the Council of States must sign, and then a majority of the total membership and two thirds of those present and voting must be secured in each House in the same session.

4. Why does this chapter not name the judge in the 2014 Madhya Pradesh matter? Because the Supreme Court did not. It recorded that the allegations were expressly disputed and would be affirmed or repudiated only after due process, that the sensitivity of the matter made it inappropriate to disclose the identity of either side, and that the petitioner's dignity and the judge's reputation deserved the same protection; it therefore referred to them as Additional District and Sessions Judge 'X' and Justice 'A'. This book holds judgments and bare Acts and nothing else, so where a court has withheld a name the book has no other source for it and does not supply one. The same limit governs the rest of the chapter: matters that left no judicial record this tree holds are not named and not dated, and the chapter says so rather than reciting a list it cannot support.