Tribunalisation is a serious encroachment on the judiciary’s independence.

Former Supreme Court judge Ruma Pal described the increasing tribunalisation (the executive decision to set up specialised tribunals) as a serious encroachment on the judiciary’s independence. The judiciary, she said, had been “timorous” in not fighting these tribunals that force it to share its adjudicating powers with the executive.

Pal, a widely respected jurist said that “The process of appointment of judges to the superior courts was possibly the best kept secret of the country. The criticism of appointments by the executive to the judiciary applied equally well to appointments made by judges to the judiciary.”

The “mystique” of the process, the small base from which the selections were made and the “secrecy and confidentiality” ensured that the “process may, on occasions, make wrong appointments and, worse still, lend itself to nepotism”, she said.

An indiscreet comment or a chance rumour was enough to rule out a person’s perceived suitability for the post, she said. Friendships and obligations also sometimes colour recommendations, she added.

Consensus in the collegium is often arrived at by “trade-offs”, she said, with “disastrous effects”. Pal also lamented the growing “sycophancy” and “lobbying” which colour these appointments.

These appointments, she said, should be done by a judicial commission of non-partisan members. Unless the process is made transparent and the resource pool widened and some objective criteria laid down, “arbitrariness” in appointments will remain, she said.

There has been a good deal of talk in recent years on the judicial accountability and standards bill but it is still pending. It proposes a judicial commission made of people from all walks of life and strong representation from the executive.

Pal was delivering the fifth V.M. Tarkunde memorial lecture here. Tarkunde, considered the father of the human rights movement in the country, was a lawyer in the Bombay Bar. He became a high court judge but later gave up the post to don black robes again. Tarkunde was never elevated to the Supreme Court because of extraneous reasons, speakers at the lecture said. His landmark judgment, that a person was entitled to a passport as a matter of right under Article 21 of the Constitution (right to life and liberty), was later adopted by the Supreme Court in the Maneka Gandhi case.

Pal also listed several sins of the judiciary. She called for a judicially “embedded” strong mechanism to ensure accountability. Any non-judicial mechanism will impinge on the judiciary’s independence, she said. The current solutions adopted by the judiciary — which give the CJI only the power to transfer, or not allot work, to erring judges — were inadequate and ad hoc, she said.

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Judges should not shy

Judges should not shy away from constructive criticism of their actions and decisions as such review leads to the development of law, Chief Justice of India S.H. Kapadia has said.

Chief Justice Kapadia said this here Tuesday while releasing a book, "The Kesavananda Bharati case: The untold story of struggle for supremacy by the Supreme Court and Parliament", written by eminent jurist T.R. Andhyarujina.

"We judges are not afraid of constructive criticism of our actions and decisions by the bar," Chief Justice Kapadia said.

He regretted that senior counsel are too engaged in their professional pursuits to pay attention to the development of statutory and constitutional law.

He declined to be part of the discussion on the plea that judges should not get involved in debatable issues.

The book recounts the "tensions and conflicts in the Kesavananda Bharati case - not only between the rival sides but also among the judges, some of whom had preconceived views because of being judges in earlier cases and others by reason of their selection by the government."

The book reveals "the stratagems of the (then) Chief Justice S.M. Sikri on the date of the judgment on 24 April, 1973 by which he formulated a paper hurriedly prepared by him 'The Views of Majority'".



"This paper was signed in Court by 9 judges, 4 other refusing to ascribe their signatures to it." This has come to be known as a majority decision in the Kesavananda Bharati case.

Andhyarujina said the book deals with the actual account of how the case developed and dealt with and the decision arrived in a "dubious manner".

His account of the case is based on his "recollections and notes maintained by him as a counsel in the case and on later interviews by him with some of the judges in the case".

The book was described by various speakers as a maiden attempt in Indian judicial history to see beyond the pronouncement of a judgment and how it was arrived at.

In the case, the Supreme Court held that parliament cannot tinker with the basic structure of the constitution.

It laid down 35 parameters to define the basic structure of the constitution that include rule of law, secularism and separation of powers between the three organs of the state -- legislature, executive and judiciary.

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Judge Population Ratio in India

The Law Commission in its 120th Report recommended that the strength of judges per one million population may be increased from 10.5 to 50 judges per million population. Giving this information in written reply to a question in the Rajya Sabha, Shri Salman Khurshid, Minister of Law & Justice, said that the judge strength of the High Courts is reviewed every three years. The data received from the High Courts for the triennial review of the judge strength of the High Courts are analyzed in accordance with the guidelines fixed for the increase of the strength which is based on number of cases filed and disposed.

Shri Khurshid further informed the House that with regard to subordinate judiciary, the Supreme Court, in its judgment of 21st March, 2002, in All India Judges’ Association & Ors Vs. Union of India & Ors, directed the States that an increase in the Judge strength from the existing 10.5 or 13 per 10 lakh people to 50 judges per 10 lakh people should be effected and implemented within a period of five years. The Central Government filed a modification petition in the Supreme Court praying that the increase in judge strength in the Union Territories for which Central Government is administratively responsible be allowed based on workload and pendency of cases.

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Health activists mark question on Justice Bhandari

Justice Markandeya Katju of the Supreme Court had withdrawn from hearing a patent dispute vitally concerning pharmaceutical majors. Justice Dalveer Bhandari, the head of the bench that has since been dealing with the case, is now under attack, this time from health activists. Though he did not himself give any reason for it, Katju's recusal in 2009 from the appeal filed by Novartis was then widely attributed to an article written by him in a legal journal conceding, much to the embarrassment of multinational companies, that "many of the medical drugs available in the market are too costly for the poor people in India" and that "ways and means should therefore be thought out for making these drugs available to the masses at affordable prices".

In what seems virtually a reversal of the situation, the health activists demanded on Monday, on the eve of the next hearing of the case, that the government should seek Justice Bhandari's recusal as he had participated in at least two international conferences for judges organized by the US-based Intellectual Property Owners Association (IPOA), whose members include Novartis, among a host of pharmaceutical and IT giants.

The stated purpose of those conferences attended by Justice Bhandari in 2009 in Washington and this year in Brussels was to help "intellectual property (IP) law attorneys and other interested parties" get an opportunity to interact with judges from around the world. In the 2009 conference, Justice Bhandari presented a paper arguing that pharmaceutical MNCs should "educate people regarding the importance of the protection of IP rights" and they should "make all efforts to ensure that all countries are persuaded to enact proper laws".

Alleging that "several statements in the paper could be held to be in conflict with the intent and letter of the Indian Patent Act", health activists wrote to three ministers stating that the government should take up the matter of recusal with Hon'ble Justice Bhandari "to avoid any room for questions to be raised once the judgment is given in light of the already expressed opinions on IP".

The letter however added that given the manner in which those conferences were "disguised as educational events, it is highly likely that judges attending these meetings are unaware that these are not neutral venues offering balanced views and discussions on IP". The activists also clarified that "this is not a matter of transparency as Hon'ble Justice Bhandari's Supreme Court web page and the Supreme Court Annual Reports do note his participation at these conferences. Nor are we in any way suggesting that this is a matter of corruption."

The signatories to the letter are Amit Sengupta (Delhi Science Forum), B Ekbal (former vice chancellor of Kerala University), M R Santhosh (Centre for Trade and Development), Prabir Purkayastha (Knowledge Commons) and lawyer K M Gopakumar.

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Asked action for questionable probe in murder case

Additional sessions judge N K Kaushik has asked Delhi Police commissioner to take action against R R Khatana, for conducting a questionable probe into a murder leading to the acquittal of all three accused. The judge said that inspector had tried to "raise unnecessary dust just to cause utter confusion and hide the truth". Noting that there was a string of lapses in the probe conducted by Khatana in the murder of west Delhi resident Hitender Singh, the court said, "It appears the inspector made it a point, in a calculated manner, may be in collusion with the accused, to ensure the failure of the prosecution's case during investigation itself."

While acquitting the murder accused in the case - Darshan Dabas, Navin Deshwal and Manish Lakra - the court held the inspector responsible for weakening the case and referred the matter to the police commissioner. "A copy of the judgment be sent to the police commissioner to take appropriate action against the delinquent investigating officer (Khatana) for not collecting cogent and requisite evidence in the matter, as per law, to get the offenders of such heinous offence punished," the judge said while also seeking a compliance report of its order from police.

The case dates back to November 10, 2008, when Nazafgarh resident Singh was found dead in his car parked near a banquet hall. Lying in a pool of blood, the man had sustained several bullet injuries. The police had also found the window-pane of the car's front door shattered and the driver's seat soaked in blood. A live cartridge and a shell were also found in the car besides a broken baseball bat stained with blood.

The prosecution had listed 47 witnesses to bolster its case but the public prosecutor later dropped several of them, saying their deposition was irrelevant. During the trial all witnesses including the parents, brothers and the wife of the deceased had turned hostile.

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Justice Soumitra Sen, facing impeachment, resigns

Justice Soumitra Sen of the Calcutta high court resigned on Thursday, five days before his impeachment motion was to taken up in the Lok Sabha. The Rajya Sabha had on August 18 overwhelmingly approved the impeachment motion against Justice Sen. Justice Sen was held guilty of misappropriating Rs. 33.23 lakh in a 1983 case. 

Here is the full text of his resignation ...

The Hon'ble Speaker

Lok Sabha
Parliament House
New Delhi

Respected Madam,

With a very heavy heart and a deep sense of anguish I am writing this letter to you.

I was elevated as a Judge of Calcutta high court on 3rd December 2003.

Till such time I carried on with my judicial functions no one either from the Bar or from the Civil Society has raised any complaint regarding my integrity honesty and competence.

There is no complaint against me even today regarding my conduct as a Judge while discharging my judicial functions or my conduct as a judge outside the Court.

I am not guilty of any form of corruption, there is no allegation against me that I am guilty of passing any order or judgment for extraneous consideration or that I have abused my power in any way so that my family or relatives or acquaintances have amassed wealth, but sadly I am still facing a motion for impeachment.

In every case that has come so far before the Parliament for impeachment there were serious allegations of misbehaviour as a judge as contemplated under Article 124(4) read with 217 of the Constitution of India.

However my case is unique and perhaps this for the first time and hopefully the last that my conduct as a junior Advocate nearly 19 years ago is being looked into for proceeding with the Motion for impeachment despite a judgment passed by the Hon'ble Division Bench of the Hon'ble Calcutta high court clearing me of all charges.

It seems that in the wake of a tsunami like wave that has arisen in this Country, I am being swept away by such a wave. In the anxiety to take definitive action against corruption even a Judgment passed by a competent Division Bench is being completely brushed aside with the remark that the Hon'ble Judges of the Division Bench have favoured me. Parliamentary Rules barring discussion in a motion regarding abstract questions of Law which also involves such discussions in this matter has been given a go bye. Further, Parliamentary Rules also prohibits moving of a motion in relation to matter which is subjudice, in this case the main application and the suit are still pending before the Calcutta High Court. The liberty given to me by the learned single Judge by an order dated 31st July 2007 is still available to me. Even then the Motion is being proceeded with.

Respected Madam, it is needless to mention that a Judgment remains a Judgment, until it is set aside by a Higher Judicial forum. Fair criticism of a Judgment is permissible but correctness and/or incorrectness thereof cannot be questioned by any one other than before a higher judicial forum.

Respected Madam, you are perhaps aware of the Charges against me. The first charge clearly indicates that it is outside the scope and purview of Article 124(4) read with 217 of the Constitution of India, as the investigation into the said charge would necessarily be in respect of an Advocate Receiver and not a Judge in office. The Calcutta High Court is a Court of Record under Article 215 of the Constitution of India, having plenary power to punish for offences committed to it. It is needless to mention that an Advocate Receiver appointed by the Court is an office of Court and not a public servant.

Therefore only the Court appointing the Receiver has the power to either punish or exonerate its own officers. In this case my conduct as a Receiver for committing the alleged offences have been duly examined by a Division Bench, which has found me not guilty as charged. Even then impeachment proceeding has been initiated against me.

A Judge is also a citizen of this Great Nation and my fundamental right guaranteed under Article 14 of the Constitution of India cannot be denied.

The fundamental right guaranteed under the Constitution of India can only be suspended in a state of emergency under Article 352 of the Constitution of India. In the instant case it has been argued in support of the Motion before the Rajya Sabha that in case of larger public interest there is no binding force of Judicial Order.

Respected Madam, I do not come from a family of Judges or politicians. I was born and brought up in Assam and came all the way to Calcutta to try my luck. By the grace of God and the hard work I put in as a Lawyer my name was suggested for being appointed as a Judge by the senior Judges of the Calcutta High court who have seen me appearing before them day after day and arguing matters with honesty integrity and competence.

I had a fairly lucrative practice which I gave up not to amass wealth by resorting to corruption but to serve the august institution being the judiciary and consequently the Nation. I have tried to serve in accordance with oath of office to the best of my ability. Therefore it hurts, when charges are leveled against me as a Judge.

My action as an Advocate has not caused prejudice to any one, who is really interested in the matter. I may have made mistakes as a junior advocate 19 years from now but then who is above making mistakes, no human being is infallible, but to accuse me of dishonest intention as a judge or otherwise I firmly repudiate and that is why in spite of being offered V.R.S (Voluntary Retirement Scheme) in lieu of resignation was not accepted by me. If I really had dishonest intention I would have taken the easy route of either resigning or accepting VRS instead of facing the ignominy of being the first Judge of Independent India to be Impeached.

It is my conviction, which I shall carry till my end, that I am not guilty as charged. Facts can be presented in either way but when there is serious lack of evidence which I have repeatedly pointed out; a High Court Judge cannot be impeached merely on the basis of presumption of guilt based upon certain error of judgment committed as a junior Advocate more than a decade prior to his elevation. It seems my conduct as a Judge in carrying out my judicial functions and out side the court as a judge has become inconsequential.

In the present mood of the Country, where the Civil Society has raised their voice against serious issues of corruptions regarding scams involving hundreds and thousands of crores, my lone voice that I am not guilty as charged cannot be heard. I wonder, whether my issue is the real issue of corruption and abuse of power by people in high places or I am being made a sacrificial lamb in the alter of justice as a showcase to tell the Nation that at least something has been done to clean the Institution from corruption.

Respected Madam, certain allegations have been leveled against me in my absence before the Rajya Sabha that I have mislead the House. I did not get any chance to rebut such allegations. Considering the fact similar procedure has been adopted before the Lok Sabha that I will not get any chance of rebuttal, I would like to bring to your kind attention certain facts which will prove beyond doubt that I have not mislead the House. The correct facts are set out in an enclosure to this letter.

Honestly and humbly I apprehend that as Hon'ble Members of Rajya Sabha of different parties have already expressed their views and I feel that it may not be reasonable for me to take the time of this August House for my defense, and also in view of the fact that I am being allotted a fixed time which I respectfully submit is inadequate, for properly making my submission before the Hon'ble House and also in view of the fact that I shall have no chance of rebuttal in respect of the submission that will be made by Hon'ble members in my absence in House, it may not be proper for me to take the time of the House further as it appears to be a foregone conclusion. This apprehension has turned into a conviction by reason of the fact that some members in spite of expressing reservations to vote in favour of the Motion but nonetheless have voted as they were morally bound to support the Motion as they have signed it, and as such I have decided humbly to submit my resignation to the Hon'ble Rastrapatiji for her kind consideration and acceptance.

Thanking you

Yours Sincerely

Soumitra Sen

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Jaitley's speech at in impeachment of Justice Sen in Rajya Sabha

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.

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