'ESTABLISH NATIONAL JUDICIAL COMMISSION ALONG WITH THE LOKPAL'
Below are excerpts of the speech made by CPI(M) leader in Rajya Sabha on August 18, 2011 in reply to the discussion on the two motions moved by him in Rajya Sabha a day earlier for removal from office of Justice Soumitra Sen of the Calcutta High Court. The motions were passed with 189 votes in favour and 17 against.
WE are reaching conclusion of a historic debate on the motions that I had moved which is on the brink of creating history, not only in the history of parliament but, I think, also in the history of our democracy. As I said at the outset, I had moved these motions, not as an indictment or a reflection of our opinion of the judiciary as a whole, but I had moved these motions in order to strengthen the independence of the judiciary, in order to establish the integrity of the judiciary which was getting besmirched by the acts of one particular individual.
RESOLVE TO FIGHT CORRUPTION
While moving these motions, I had also said that we are doing this with no jubilation or elation, neither vindictiveness nor vendetta, but we are invoking legitimate Constitutional provisions to ensure that the sanctity of our Constitution is maintained and the supremacy or the centrality of our Constitution, which is the sovereignty of the people, is established through their elected representatives, that is the parliament. In doing so, I think, we have today, in a sense, also reflected the general mood that is there in the country. We have seen the waves of protests against corruption at high places. We have seen the concern and the actual disgust that many in our country are reflecting in their own ways against this sort of corruption; and, in the midst of that, the parliament rising to the occasion and saying that we will invoke our Constitution, we will invoke the supremacy of the parliament in order to ensure that corruption in high places will be checked and when anything wrong is brought before us, we will act to correct it. That, I think, is a very important element today to convey to the country and our people — the will and resolve of this House in tackling corruption at high places. I think, this is something the debate has established. That is why I am truly impressed with the richness of the debate and this only further strengthens my own confidence that when the occasion demands, this august House will rise to the occasion, and has risen to the occasion in a splendid manner with no acrimony or personal attacks. We have discussed an issue as serious as this and on the merits of it; it is a matter to note that we have the leader of the House, the prime minister, sitting through the entire debate; we had the leader of the Opposition not only being present but also contributing richly to the content of this debate which was shared by all, cutting across the political-lines. I think, the richness of the debate also naturally transcended the limited purpose of the motions. It naturally transcended the barriers of these motions in talking of the separation of powers between the legislature, the executive and the judiciary. It talked of the issues of separation of these powers, what should be the role of the judiciary, how the
appointments should be done and I am very glad that these issues have been brought into public domain and in the discussion of the parliament so that in the coming days we should address them in all seriousness.
ON PROVED MISBEHAVIOUR
But, there have been some questions that have been raised. Notably, my distinguished friend and colleague, Satish Chandra Misra, and also by my distinguished colleagues, Bharat Singh Raut and others, on the question of the word and the concept of misbehaviour. Now, the question of what was the role of Soumitra Sen after he became a judge? That has been answered by Jethmalani and Ravi Shankar Prasad and I do not want to repeat it. But there is the word ‘misbehaviour’. The Inquiry Committee actually goes into the genealogy of this particular word, which due to paucity of time, I did not read out at the time of introducing the motions, but I will read out now. It is a short passage. It says, “The word ‘misbehaviour’ in the context of the judges of the High Courts in India was first introduced in proviso (b) to Section 202 of the Government of India Act, 1935.” Under the 1935 Act, it was initially the Privy Council and later the Federal Court of India that had to report to India’s Governor General when charges were made of misbehaviour against a judge of a High Court. In the Report of the Federal Court in respect of charges made against Justice S P Sinha, a judge of the High Court of Allahabad, one of the charges made by the Governor General against the judge were, “That Justice S P Sinha has been guilty of conduct outside the court, which is unworthy of and unbecoming of the holder of such a high office,” which was then particularised. Since this charge was not substantiated against the Judge by evidence, it was held to have been not established. But the charge as they framed has tersely but correctly described the scope and ambit of the word ‘misbehaviour’, namely, guilty of such conduct whether inside or outside the court, i.e., “Unworthy and unbecoming of the holder of such a high office.” The same word ‘misbehaviour’ now occurs in the Constitution of India in Article 124(4) when read in context with proviso (b) to Article 217(1). These provisions state that a judge of the High Court shall not be removed from his office except on the grounds of proved misbehaviour. The prefix ‘proved’, (which my friend had quoted) only means proved to the satisfaction of the requisite majority of the appropriate House of the parliament, if so recommended by the Inquiry Committee. The words ‘proved misbehaviour’ in Article 124 have not been defined. Advisedly so because the phrase ‘proved misbehaviour’ means such behaviour which, when proved, is not befitting of a judge of the High Court.”
The entire discussion we have had in the last two days here has only proved that there is a misbehaviour on the part of Justice Soumitra Sen. We will decide upon through a vote subsequently, and if we come to that conclusion, that is the meaning of proved misbehaviour. And that proving we have to do. Are we convinced about that proving? That is what we have to stand up to, and that is what we have to do. If you just go through the Inquiry Committee Report, there are, at least, four major sections and, at least, seven sub-sections where the the misbehaviour of Justice Soumitra Sen, after becoming a judge, has been established. This is all there on record from pages 22 to 26,
and it is all there on record, and as part of the evidence. So, today, it is not a question of our passing judgement or discussing about Soumitra Sen as an advocate and not as a judge. And, also, as I said, when I was moving the motion, it is no longer tenable to say that these charges were made against Soumitra Sen before he became a judge, therefore, the Judges Inquiry Act does not apply to him since it was not when he was a judge. That has also been established under law, that it is not the question of what is established on the issue of misbehaviour that I have just quoted to you; it is not a question of when you are a judge or when you are not; it is not a question whether it happens in the court or outside. But the question is whether your behaviour will cast aspersions not only on your character and integrity but the character and integrity of the entire judiciary. You are liable to be drawn under this section.
MISAPPROPRIATION OF FUNDS
This is what the Inquiry Committee has said on the Division Bench. It says, "The observation in the judgment dated September 25, 2007, of the Division Bench of the Calcutta High Court to the effect that there was no misappropriation of Receiver funds by Justice Soumitra Sen was, after considering the uncontested Affidavit filed on his behalf by his mother which categorically asserted that the entire sum received by him from the sale of goods i.e., Rs. 33,22,800 was invested in M/s Lynx India Limited and that the company has gone into liquidation a couple of years later. This statement, along with further misleading and false statements, in Ground 13 of the Memorandum of Appeal that they have appended to this Report were material misrepresentation made by and on behalf of Justice Soumitra Sen before the Division Bench of the High Court of Calcutta. The finding by the Division Bench in its judgment of July 25, 2007, that Justice Soumitra Sen was not guilty of any misappropriation was made on a totally erroneous premise induced by the false representation made on behalf of Justice Soumitra Sen." I don't think you require a greater clarity than this. Therefore, what was the misbehaviour or what was misappropriation that was done has to be understood.
Ram Jethmalani has referred to Section 403 of IPC. What was the deal? Why did he pay back the money when he was asked to pay back? It is only to escape imprisonment. The questions were raised on the question of misappropriation. Is diversion a misappropriation? Does using that money temporarily for some purpose constitutes misappropriation? We have heard the labours of Soumitra Sen yesterday when he said, 'you tell me one paisa that is there in my account. Have I made any money at all from holding this money? So, therefore, there is no misappropriation that I have committed.' But what is the definition of 'misappropriation' under Section 403 of IPC? Section 403 of IPC says, 'Whoever dishonestly misappropriates or..." -- please underline – "...converts to his own use.....shall be punishable with imprisonment..." It clearly says if a person 'converts to his own use.' Then it goes on to clarify in the explanation, "A dishonest misappropriation for a time only is a misappropriation within the meaning of this section." So, whether it is for a short time or whether it is for personal use only to be returned even if you are a fiduciary and a trustee. If money is deposited with me, I cannot borrow that money even temporarily. I may be very honest and return back that money. But, the very act of borrowing that money makes me guilty of misappropriation. That is the Indian law. Our laws are very clear -- it is both the acts of omission and commission. You cannot say, 'I don't have any money that I have put in my bank accounts and, therefore, I am not guilty.' But, your acts of omission that have led to such acts of guilt are actually breach of law. Therefore, on all these counts – whatever matters that we have discussed earlier -- he is guilty. In 1984 he was appointed as Receiver and the matter finally settled in 2006. In 2002, SAIL asked for the accounts as to what happened to that money. He does not reply immediately. Yesterday he was telling us in a much laboured manner. In the whole two hours of his presentation, there was only one mention about SAIL and that one mention came in terms of reference to the learned counsel of the SAIL. When the whole case of misappropriation centers around the money of dispute between SAIL and the SCIL, he was made the trustee of it and for that there is no reference. But, he, of course, asked me to go back to my workers and find out if they have been paid. I am grateful if that had happened. Sometimes, justice can be done by these courts also and by such judges. If the workers have been paid, it is good. But, that is not the issue. The issue is, who gave you the right to divest Rs 25 lakhs of the Rs 70 lakhs given to you to pay to the workers and invest that amount in a private company which was going into liquidation? Is there any scam involved in this? That needs to be investigated. You have divested Rs 25 lakhs of money that was meant and set aside for wages and compensation to the workers to be invested in a private company which goes burst within a couple of years! Was it done with knowledge that it is going to go into liquidation? What is the feedback there? That also needs to be investigated today. So, these are various issues which have come up on record now. We all came to know how fictitious accounts have been recorded, how cheques have been issued for the payment of credit cards. Therefore, keeping this in mind, the case, according to me, is a closed case.
Finally, the point I want to make is, the labour behind the entire argument yesterday was that there was a great conspiracy against him. What is the conspiracy? You have the Chief Justice of India. You have noted judges like Justice A P Shaw, Justice A K Patnaik and Justice R M Lodha. Have they all conspired against Justice Soumitra Sen? You have the Chief Justice Justice B N Agarwal and Justice Ashok Bhan. They are all the senior most judges. Do you mean to say that they have conspired against Sen? And, now, do you mean to say that Justice Sudarshan Reddy, Mukul Mudgal and Fali Nariman have all conspired against Sen. To question the integrity of such people and to say that all of them have colluded in a great conspiracy to prosecute Soumitra Sen is a great conspiracy theory that has been woven yesterday and that conspiracy theory needs to be broken.
NEED TO TACKLE
LARGER ISSUES
Therefore, finally, I think the issues that have been raised by the Leader of the Opposition, echoed by many other members, here on the larger issues connected with judiciary, executive and the legislature, this motion today has to be adopted and should be used as the trigger for us to continue with these discussions, so that we, as parties -- CPI(M) has always been asking and continues to ask even now -- have to ask for establishment of the National Judicial Commission along with the Lokpal. We think that both should go together. And, these are the issues, finally, we have to take up, because our constitutional scheme of things talks of judicial review, not judicial activism. And, that is where, the judges will interpret the law. The power to make law lies with parliament and that is the supremacy. And, it is that supremacy we should uphold.
Finally, let me quote what Pandit Jawaharlal Nehru has said during the Constituent Assembly debates. He said, 'No Supreme Court and no judiciary can stand in judgement over the sovereign will of the parliament representing the will of the entire community. If we go wrong here and there, it (the judiciary) can point it out. But, in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way. Ultimately, the fact remains that the legislature must be supreme and must not be interfered with by the court of law in measures of social reform." So, this is something which we will have to uphold. I thank all those who participated, and, through you, urge that the motions that I have moved yesterday be accepted.
Courtesy: People's Democracy
