FAQ on Impeachment of Judges

Parliament is expected to take up a motion for impeaching Justice Soumitra Sen of the Calcutta High Court.  M R Madhavan (head of Research, PRS Legislative Research, New Delhi) explains the process of impeachment and the facts of this case.

What is the importance of Parliament's discussion on the Justice Sen issue?

The Rajya Sabha is scheduled to discuss a motion for the removal of Justice Soumitra Sen of the Calcutta High Court.  Till date, no judge of the higher judiciary (Supreme Court and High Courts) has been successfully impeached.

What is the legal framework regarding impeachment of judges?

The Constitution has measures to ensure the independence of the judiciary from executive action.  This helps judges give judicial decisions in a free and fair manner without any inducements. 

The Constitution also provides checks against misbehaviour by judges.  It states that a judge may be removed only through a motion in Parliament with a two thirds support in each House.  The process is laid down in the Judges (Inquiry) Act, 1968.

How is the motion initiated?  What is the process after that?

A motion has to be moved by either 100 Lok Sabha members of Parliament or 50 Rajya Sabha MPs.  If the motion is admitted, the Speaker of Lok Sabha or Chairman of Rajya Sabha constitutes an inquiry committee. 

The committee has three members: a Supreme Court judge, a High Court Chief Justice, and an eminent jurist.  The Committee frames charges and asks the judge to give a written response. 

The judge also has the right to examine witnesses.  After the inquiry, the committee determines whether the charges are valid or not.  It then submits its report.

What happens then?

If the inquiry committee finds that the judge is not guilty, then there is no further action.  If they find him guilty, then the House of Parliament which initiated the motion may consider continuing with the motion. 

The motion is debated.  The judge (or his representative) has the right to represent his case.  After that, the motion is voted upon.  If there is two-thirds support of those voting, and majority support of the total strength of the House, it is considered to have passed.  The process is then repeated in the other House. 

After that, the Houses send an address to the President asking that the judge be removed from office.

Has this process taken place earlier?

Yes, there has been one such case.  Justice Ramaswamy of the Supreme Court faced such a motion.  The inquiry committee found that the charges against him were valid.  However, the motion to impeach him did not gather the required support in Lok Sabha.

What are the charges against the Justice Sen?

There are two charges.  He is accused of misappropriating large sums of money which he received as a receiver appointed by the Calcutta High Court.  He is also accused of misrepresenting facts in this regard to the High Court.

What is the charge of misappropriation?  What did the inquiry committee conclude?

Justice Soumitra Sen was appointed Receiver in a case by an order of the Calcutta High Court on April 30, 1984. As a Receiver, Justice Sen had the power to collect outstanding debts and claims due in respect of certain goods. 

The Receiver is required to file and submit for passing, his half yearly accounts in the Office of the Registrar of the High Court.  However, Justice Sen did not comply with this rule.  As a Receiver, Justice Sen was required to open only one account and not move funds without prior permission.

However, the Inquiry Committee found that two separate accounts were opened by Justice Soumitra Sen as Receiver, with ANZ Grindlays Bank and Allahabad Bank.  A total sum of over Rs 33 lakh was transferred in these accounts from the sale of the goods which was unaccounted for. 

Justice Sen claimed he could not account for this amount since it was invested in a company called Lynx India Ltd. to earn interest. The Inquiry Committee found this claim to be false as well.

It was found that the amount transferred to Lynx India Ltd. had been made out of an account opened by Justice Sen in his own name.  The Committee concluded that (a) there was a large-scale diversion of fund, and (b) such diversion was in violation of the orders of the High Court.

The purpose for such diversion remains unexplained.

This action was done by him as an advocate? Are there any charges against him after he was appointed as a judge?

Justice Soumitra Sen was appointed a High Court Judge on December 3, 2003. The Inquiry Committee noted that Justice Sen's actions were, "an attempt to cover up the large-scale defalcations of Receiver's funds". 

After he became a Judge he did not seek any permission from the Court for approval of the dealings, as required by the Court, nor did he account for the funds.

Is there any other case?  What is the status?

Another such motion has been initiated against Chief Justice Dinakaran of Sikkim High Court.  An Inquiry Committee is looking investigating the issue.  However, Mr Dinakaran has reportedly sent in his resignation to the President.  If the resignation is accepted, then the motion to remove him will become ineffective.