What Jaitley said in impeachment of Justice Sen

It was a historic day in Rajya Sabha where a motion was moved to impeach a judge of Kolkata High Court and remove him from his post. At 3 pm on Wednesday, the motion was moved by Communist Party of India-Marxcist leader Sitaram Yechury.

Justice Saumitra Sen was given 90 minutes to defend himself. His defence was highly convincing and house of elders was stunned to hear the details, when he repeatedly blamed former Chief Justice of India K G Balakrishna for his predicament.

However, when leader of Opposition Arun Jaitley rose to speak, he gave counter arguments, which remained inconclusive.

Here is the excerpt of Jaitley's speech during the motion for the removal of Justice Sen. The debate and motion, a rarest of rare event, will be debated by students of law, judiciary, democracy and parliamentary procedure for years to come.

Jaitley's speech:

This is a sad but historic moment in the Indian democracy. We have assembled to decide the fate of a man who decided the fate of others. This political house is here to perform a judicial function. We have heard a detailed presentation in the defence of the judge sought to be impeached.

The power of removal/impeachment of a judge of the Supreme Court or the High Court is a power which is to be used in the rarest of the rare cases. We invoke this jurisdiction to remove a man and save the dignity of the office, which is paramount.

The invocation of the power is both punitive and deterrent. The removal of a Supreme Court judge under Article 124 (4), and a High Court judge under Article 217 (1) (B) after following the procedures prescribed in the Judges Inquiry Act, can only be for proven misbehaviour or incapacity.

In this case, the jurisdiction is being invoked on the ground of 'proven misbehaviour'.

While participating in the debate on Article 124, in the Constituent Assembly, Gopalaswamy Aiyangar had expressed a hope that the procedures would never be used during his life time.

His prophecy proved to be true. But now times are changing. We chose the best system for India, a system of Parliamentary democracy with separation of powers and independence of judiciary.

Judiciary performs a divine function where ordinary humans decide the fate of others. When this divine function of deciding the fate of others is bestowed in a Judge, we expect him to perform it with the highest standards of scholarship and utmost impartiality.

He must be detached from all collateral persuasions. The premise of the utmost impartiality, free from aberrations under which the institution of judiciary was created, is no longer available. There are compromises, in terms of quality, in terms of independence and collateral influences.

Thus, there is a need to be vigilant about the judiciary.

Judges no longer live in ivory towers. Today, they live in glasshouses where the bar, litigants, public and the media watch them from close proximity. But then we have all to exercise utmost restraint. Judges cannot defend themselves against unfounded allegations.

They must neither be summarily tried nor be thrown to the wolves. A judge, under inquiry, must be candid. He cannot plead only technical defences. He cannot be too clever by half. He cannot invoke a right to silence like an ordinary accused, and shy away from speaking the truth.

In this case, when the Judge under inquiry says that his offence must be proved 'to the hilt' or 'proved beyond reasonable doubt', he relies on technicalities rather than substance. A Judge is like Caesar's wife. He must be beyond suspicion.

Caesar divorced his wife merely on the basis of suspicion. Those who occupy high offices must live through the scrutiny of highest standards of probity. A Judge must be beyond suspicion. Is Justice Soumitra Sen guilty of 'proven misconduct?

On 10.01.1983 a civil suit was filed by the Steel Authority of India seeking money decree against various defendants. The dispute was in relation to certain goods. On 30April 30, 1984, the Calcutta High Court appointed Shri Soumitra Sen, advocate, as a Receiver to take charge of goods, sell the goods and make an inventory of the goods.

He was directed to file half yearly returns with the court, in relation to handling of the goods. Nothing significant happened till January 20,1993, whereupon the Calcutta High Court directed the Receiver to sell the goods, open a separate bank account, and keep the proceeds free from lien or encumbrance.

The Receiver opened to bank accounts. He eventually sold the entire goods for a value of Rs. 33,22,800. Of this amount he deposited Rs 4,68,000 in the Allahabad Bank and the balance in the ANZ Grindlays Bank.

He did not even once file the return of accounts with the court for how much money he collected, and how much money he had spent. He was entitled to collect a five per cent fee on this amount, which he did.

Of the money deposited in the Allahabad Bank, he usurped them for an unlawful purpose. Instead of holding the money for the benefit of the SAIL, he has issued a number of cheques in favour of private individuals: Subroto Mukherjee, Biresh Prasad Choudhary, Somnath Ray, K L Yadav, and one Jayguru Enterprises.

He also withdrew money against several self-cheques.  He further drew out payments against his VISA credit card and made payment to a bookselling company M/s S C Sarkar & Sons.

He has till date not explained why he usurped this money.

He was also appointed Special Officer for disbursement of workers dues in the case of one Calcutta Fans Ltd, which had gone into liquidation. He was given Rs 70 lakh for distribution amongst the workmen. Of this Rs 70 lakh, he withdrew a sum of Rs 25 lakh and deposited it with one company called Lynx India Ltd.

When he had to pay the money to the workmen, he was obviously short of payment. He, therefore, withdrew an amount of Rs 22 lakh from the Receivership account of SAIL, and deposited it in his Special Officer account in relation to Calcutta Fans case.

All this while, he did not render any account to the court. These monies continued to be misappropriated by him, and this misappropriation continued for a reasonable period of time.

On March 7, 2002, the Receiver Soumitra Sen was asked to submit the accounts by the Advocate of SAIL. He did not respond to the same. On February 27, 2003, the SAIL advocate moved to the Calcutta High Court for rendition of accounts.

On December 3,2003, Advocate/Receiver Soumitra Sen was elevated as Judge of Calcutta High Court. The single Judge of the High Court repeatedly issued notices to the Receiver to render accounts.

He never cared to reply to the notices. Finally, on April 10, 2006 the single Judge of Calcutta High Court passed serious strictures against him and directed him to pay a sum of Rs. 52, 46, 454/- to the SAIL.

This was in addition to Rs 5 lakh he had already paid. He started paying the amount from June 27,2006 onwards and for the first time, after paying Rs 40 lakh in installments , he moved an application on September 14, 2006 seeking extension of time to pay the balance.

He did not dispute the judgment of the single judge. After paying the balance amount, he moved the single judge for deletion of the remarks against him. The single judge declined his request.

Meanwhile, newspapers in Calcutta published several articles on how Justice Soumitra Sen had continued to keep the misappropriated amounts, even after his elevation as a Judge. The Chief Justice of Calcutta High Court wrote to the Chief Justice of India, that this prima facie amounted to misconduct and Justice Sen should be proceeded against.

On September 20, 2007 he was asked to explain his conduct by the Chief Justice of India. Anticipating an in-house inquiry against himself, he requested for time from the Chief Justice of India, and on the same day argued his case before the Division Bench of the High Court in a proceeding that is prima facie collusive.

All the advocates present in the court including the advocate for the SAIL, and the buyer of the goods agreed with Justice Soumitra Sen's advocate that strictures passed against him should be removed. The division bench accordingly removed the comments against him.

The Chief Justice of India appointed an in-house inquiry committee of three Judges i.e. Justice A P Shah (then Chief Justice of Madras High Court), Justice A K  Patnaik (Chief Justice of Madhya Pradesh High Court) and Justice R M Lodha (a Judge of the Rajasthan High Court) to examine the conduct of Justice Soumitra Sen.

He appeared before the Inquiry Committee and put up his defence. His defence before the single judge, or before the division bench and the in-house Inquiry Committee was that he had, in good faith, deposited the amounts collected by him in the SAIL case as Receiver with Lynx India Ltd and that money got lost because of the liquidation of that company.

Both the single judge and the in-house inquiry committee came to the finding that he had put up a false defence and that no amount of money was deposited with M/s Lynx India Ltd. He deliberately created a smokescreen, since it was the money in the Calcutta Fans case, which had actually been deposited in that company.

The in-house inquiry committee held him to be guilty. He declined the request of Chief Justice of India to resign. Fifty Eight Members of Parliament moved a motion for his removal. An inquiry committee was constituted by the Chairman, Rajya Sabha to examine the case of Justice Soumitra Sen.

He appeared before the committee but claimed a right to silence. He put up a defence of the monies received by him as a receiver being lost on account of liquidation of Lynx India Ltd. This committee also came to the conclusion that Justice Sen is guilty of 'proven misconduct'.

Justice Sen is guilty of a continued 'proven misbehavior' from his days as a lawyer when he was appointed as a Receiver; and this continued well in to his tenure as a Judge of the Calcutta High Court. He never rendered the accounts as directed by the courts both as a lawyer and as Judge.

He created encumbrances, by withdrawing monies, which were in his custody as a Receiver of the court. He transferred these monies unauthorisedly to persons not authorised to receive them. He withdrew the monies himself. He transferred the money to another account, which he maintained as a special officer in Calcutta Fans case.

Even after his elevation as judge in 2003, he continued the misappropriation of monies. His case squarely falling under Section 403 of the IPC of temporary misappropriation of monies is a criminal offence. In any case, he continued to retain these monies till 2006.

He only returned the monies under the coercive order of the court and not otherwise.

During his tenure as judge, he put a false defence before the single judge, the Division Bench, the in-house inquiry committee and the impeachment inquiry that he had invested these monies in a company which went into liquidation.

The liquidated company had nothing to do with these monies. The Division Bench judgment is a judgment with consent of all parties. It does not lay down the law. It is a judgment in personam, which is binding only on the parties, and not a judgment in rem, which binds the rest of the world. It does not, in any way, restrain the jurisdiction of this House under Article 217 from examining a case of 'proven misconduct'.

Justice Soumitra Sen's conduct as a litigant was unfortunate. He led no evidence. He hardly cross-examined witnesses. He claimed the right of silence. He then misrepresented and put up a false defence.

He has been held guilty, both by the in-house committee appointed by the Chief Justice of India, and also by the committee appointed by the Chairman, Rajya Sabha. He is conclusively guilty of an offence.

A case of 'proven misconduct' is made out against him. A Judge has to lead by example. A Judge cannot rely on technicalities and try to escape the rigours of law. Litigants cannot be Judged by a Judge, who himself is stigmatised. The defence of Justice Sen has thus to be rejected.