Impeachment

They are Also Saying ‘Judiciary Beware’

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For a man who could go down in history for all the wrong reasons, Justice Soumitra Sen is feisty.

The cars with red beacons are still there on the driveway to his home in Kolkata’s Salt Lake City. But they may not be there for long. For a man who could go down in history for all the wrong reasons, Justice Soumitra Sen is feisty. He appears reconciled to his impending fate as the first judge of a high court to be impeached in independent India. He insists he is being wronged, for making “errors of judgement” years ago when he was an advocate and a receiver, not a judge. He says he has become a fall guy, a sacrificial lamb of politicians across party lines who are trying to portray that they are cleansing the Judiciary of corruption. In an exclusive interview with Paranjoy Guha Thakurta, the 53-year-old judge of the Calcutta High Court, who was enrolled as an advocate in February 1984 and elevated as a permanent judge in December 2003, defends himself against charges that he misappropriated public money. Excerpts:

Q The overwhelming majority of MPs present and voting in the Rajya Sabha (189 for and 17 against) on 19 August have voted in favour of the motion to impeach you. There is every indication that the vote in the Lok Sabha will not be too different. How do you react to your impending impeachment?

A As a judge, one can definitely not feel happy about this. At the same time, I will perhaps be the first judge to be impeached without there being any allegation against my conduct as a judge. It appears that all political parties have joined hands. There is a common perception in this country today that there is  huge corruption in high public places, and that, therefore, something needs to be done. From what I have read about the proceedings in the Rajya Sabha, it seems that the issues that were discussed, particularly in my absence, were not solely related to my impeachment, but the state of affairs in the entire Judiciary, issues such as the appointment of a Judicial Commission and appointment of judges. It seems that out of the issue of my impeachment has arisen a common platform for politicians in Parliament to discuss the conduct of the entire Judiciary and to find ways and means to curb the independence of the Judiciary.

Q This is what has raised a huge amount of doubt and confusion. As an advocate-receiver, you are supposed to keep the money which has been obtained from the sale of disputed goods (refractories or fire-bricks that are used to line blast furnaces in steel plants), which prima facie is supposed to belong to the Steel Authority of India Limited (SAIL). How can you remove this money? You are holding the money in a fiduciary capacity. How could you use this money for your own purposes, self-cheques, credit-cards or even move it to another account ostensibly to pay workers of Calcutta Fans?

A You see the 1993 order casts an obligation on me. After you receive the entire purchase consideration, you keep it in a separate bank account of your choice. Between 1993 and 1995, I received 22 separate drafts all in my personal name, not in the name of a receiver. They were encashed from two accounts, one in Allahabad Bank and one in Standard Chartered.

Q Both Sitaram Yechury, who moved the motion, and Arun Jaitley, on more than one occasion in their speeches, said that this is not a motion against the Judiciary as a whole but a motion to impeach a single judge. For instance, Mr Yechury said:“This is not a motion questioning the integrity of the Judiciary. This is a motion against one judge who has been found to have indulged in conduct that constitutes the definition of misbehaviour within the meaning of our Constitution. It thus makes this judge unsuitable to occupy the exalted office of a judge of a high court.”

A You’re absolutely correct. In fact, the motion was moved by Mr Yechury on this note. But if you go through the discussions that went on for six-and-a-half hours, various issues regarding the Judiciary as a whole, including the 1993 impeachment motion against (former Supreme Court judge) V Ramaswami, were discussed. Various judgments were discussed regarding the primacy of the Supreme Court in the appointment of judges, the procedures involved, etcetera. There is a procedure established. If a motion is restricted to an issue, the discussion should have remained on that. However, various other issues were discussed and this gives me an impression that this was perhaps not just a motion to impeach me, but also used as a platform to say: “Judiciary, beware!”

Q In 1993, when there was a similar motion for the impeachment of the then judge of the Supreme Court, V. Ramaswami, that impeachment motion was eventually dropped because the Congress party at that particular point of time abstained from voting. PV Narasimha Rao’s government was then in power. More recently, there is an impeachment motion currently pending against Justice P. D. Dinakaran, who recently resigned as Chief Justice of the Sikkim High Court. He wanted to take back his resignation and wrote a letter to this effect to the President of India, Pratibha Devisingh Patil. He was denied the opportunity to take back his resignation. Why did you not follow in the footsteps of Justice Dinakaran or Justice Ramaswami who, after the impeachment motion against him failed to be passed by a two-thirds majority of Parliament, put in his papers voluntarily? Why did you decide to fight it out? Why did you decide to say “I’m not a quitter”?

A Justice Ramaswami resigned after the impeachment motion against him was dropped. That situation has not arisen for me. As far as Justice Dinakaran is concerned, I am not really aware as to what prompted him to resign and what then prompted him to withdraw his resignation. Why did I choose to fight and say that I am not a quitter? Right from the beginning, I have always maintained that the facts in my case are very involved and I was confident of demonstrating one fact: that as an advocate-receiver, there might have been some error of judgement on my part in handling of an account but I do not accept the allegation of misappropriation of money. I have no quarrel with the proposition that judges are in an exalted position and it is absolutely necessary for them to conduct themselves in a manner in which their position is not tarnished in any way. At the same time, we should appreciate that a charge of misappropriation under Article 124.4 of the Constitution of India has to be proven.

Q Before I come to this point, I want to return to your claim that the political class as a whole has come together against you. But 17 members of the Rajya Sabha belonging to the Bahujan Samaj Party, including Satish C. Mishra, did not support the motion. So how can you say that the political class as a whole came together?

A Perhaps, they reacted after hearing me in the Rajya Sabha, because I pointed out certain very relevant facts. I am not only a victim of circumstances, I have been victimised in the manner in which the whole thing has proceeded. Misbehaviour is a conduct arising out of the charge of misappropriation. If that charge cannot be proved, then there is no question of misbehaviour.

Q Why do you think the BSP did not support the motion? Why did the MPs belonging to the Trinamool Congress, which happens to be in power in West Bengal at this point in time, abstain from voting?

A You are asking me questions that relate to decisions by certain political parties. I am an absolutely apolitical person. I have had no connections with any political party at any point in my life. I have absolutely no idea what prompted them to do so.

Q It is common knowledge that you have been close to Somnath Chatterjee (former Speaker of the Lok Sabha). You have been his junior as an advocate.

A That is a misconception, I was never his junior. I was his son’s junior.

Q I stand corrected. But what is a fact is that soon after Mr Chatterjee demitted office as Speaker of the Lok Sabha,he wrote a letter to the Vice-President of India and Chairman of the Rajya Sabha, arguing that Mr Yechury’s resolution does not merit consideration and this is not a fit case for impeachment. There is speculation that defended you because he was expelled from the Communist Party of India (Marxist) after the India-US nuclear deal in 2008 and this motion was moved by a serving member of the CPI(M).

A It could also be speculated that the motion was brought in at a time when he rejected the suggestion that he resign from the party. You can argue that way as well. But I’m not speculating. Please understand that Mr Chatterjee is a person whose knowledge of law is unquestioned. I have had very few occasions to work with him personally because by the time I joined the profession, he was active in politics. But it is true that he has seen me in his house working under his son. To say that I am extremely close to him would not be correct because we have hardly any occasions to interact with each other, in social or private matters. If one goes through the contents of the letter (he wrote), it raises pertinent questions of law. It is not an emotional letter trying to protect me. He, as a member of the legal fraternity, felt that injustice was being done and wrote this as a call of conscience.

Q Do you not think it is ironical that the person who moved the impeachment motion against Justice V. Ramaswami in 1993 was none other than Somnath Chatterjee?

A Absolutely, this is the strangest part. Because this person believes that the judiciary should be absolutely clean…You cannot question his commitment to be a clean judiciary. Why should he come out in support of me? Because, (he knows that) there are certain very relevant facts of law. Impeachment of a judge is not based upon preponderance of guilt. You suspect this man to be guilty, therefore, hang him. That is not the principle.

Q One phrase that has been used over and over in your case is the reference to Caesar’s wife, how Caesar divorced his wife purely on the basis of suspicion…

A You are absolutely correct. The suspicion here is not regarding my conduct as a judge, but my conduct as a receiver. The argument is that if a person conducts himself like that as a receiver, why should he remain a judge? Here I would like to clarify one thing. What is the test I had to go through? My conduct as a receiver was examined by one court. There are various points I have made in the Rajya Sabha… I feel extremely hurt and that is why I am trying to defend myself. I was appointed a receiver in 1984. In 1993, an order was passed that ‘you sell a specific quantity of goods at a specific price, and after you sell the entire quantity, you keep it in a bank account of your choice until further orders’. This created a difficulty because without a specific direction, one can’t create a receiver’s account.

Q Before I come to your conduct as a receiver, the question is that if you were not appointed as a judge, then the laws of the land would apply to you as an advocate and as a receiver. Therefore, if you were found guilty of having misbehaved or misappropriated money, as an advocate, under Section 409 of the Indian Penal code, you could have been sentence for a minimum term of ten years or (a maximum term of) life imprisonment.

A Yes, that is correct. However, to proceed against a receiver, one needs a sanction of a court. That is the law. Here my conduct as a receiver was examined by a higher court. Even if a receiver is held guilty, he has a legal recourse to try and establish that he is not guilty… An order passed at the first instance is not necessarily correct, or else why would appeals be filed? A particular court may feel for whatever reason that a receiver has acted wrongly, but the receiver can go to a higher court to contest this judgement…

Q Look at the sequence of events. After the single judge of the Calcutta High court passed strictures against you, the division bench of the same court removed those remarks. But this, according to many, did not imply that you were exonerated. What then happened is that the then Chief Justice of the Calcutta High Court, VS Sirpurkar, referred the matter to the Chief Justice of India (CJI). Let me draw your attention to what Mr Jaitley said in the Rajya Sabha: “He (meaning you, Justice Sen) 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 20 September 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 CJI, and on the same day argued his case before the division bench of the High Court in a proceeding that is prima facie collusive.”

A This is not a correct representation of facts. Justice Sirpurkar wrote a letter dated 26 December 2006 to the Honourable CJI, Mr YK Sabharwal. He also asked me to give my response, which I gave. Now, I did not get any intimation from Justice Sabharwal to come and meet him. The only time I have met any CJI was Justice KG Balakrishnan after Justice Sirpurkar was elevated to Supreme Court… That is the time when my application for deletion (of remarks made by the single judge) was pending disposal… It was filed in December 2006, and on 31 July 2007 the order was passed. So I was waiting for the disposal of this application. Because I found from the order dated 10 April 2006 that he (Justice Balakrishnan) has written that he had made this investigation because I did not come forward ‘to give [an] explanation’….And I also found from the April 2006 judgment, which contains adverse inferences, that he has taken into account (facts relating to) certain withdrawals (of money) and that he had commented that (the funds withdrawn) … had been taken to an unknown place and that this constituted misrepresentation. Please appreciate that at that point in time I had no documents in hand. All the documents that were given came from the order of the court, along with the judgment. So while examining this, I found that he (Justice Balakrishnan) had taken into account that particular account from which a distribution was made to the workers (of a company called Calcutta Fans).

Q How could you receive money in your personal account? This was money given to you in your capacity as a receiver. This was money obtained from the proceeds of the sale of disputed goods.

A That is the point… The drafts were in my personal name, so it had to be encashed (via) an account that stands in my name. You see, this is the fine distinction that I have been trying to draw from the very beginning. Look at the 1993 order. Anybody conversant with law would understand…My perception was that, as per the 1993 order, after the sale is complete, the (funds) are to be segregated and kept separately. Unfortunately for me, permission was given to lift (the goods) in lots, and so the money did not come at one go… it came 22 times. As and when money came, encashments were made. I made it separately and invested (the money) in fixed deposits. You have said that there were personal withdrawals… I had started my profession in 1984. By 1993, I had practised as an advocate for almost nine years. I had a two-storied house, a car. I was maintaining my family… Do you mean to suggest that I needed this receiver’s money to pay for books worth Rs 1,200?

Q You have suggested that you could have handled this money better. What is being argued against you is that the money that came to your account in your capacity as a receiver-advocate was not your personal money and you had no right to use it for personal purposes.

A For me, money is what is in my account. It did not have a special connotation because it was receiver’s money. I was under the impression that so long as there are sufficient funds in my account, there is no question of dealing with the receiver’s money… I believed that the court allowed me to encash money in whichever bank account I held. So I did it….

Q Your argument does not convince many. On 10 April 2006, the single judge of the Calcutta High Court passed a series of strictures against you—and directed you to pay Rs 52,46,554. That was the amount pending that you had to pay to SAIL in addition to the Rs 5 lakh that you had already paid. You started paying this amount from 27 June 2006 onwards, and then, for the first time, after paying Rs 40 lakh in instalments, you moved an application on 14 September 2006 seeking an extension of time to pay the balance amount. This clearly shows that contrary to what you are claiming—that this was your money and that you didn’t have a clear account of what was your personal money and what was the receiver’s money, that these got mixed up—the fact that you were asking for more time indicates that you used the receiver’s money for your personal purposes.

A Not at all. With regard to this instalment question, there are orders on record showing that I paid in accordance with the direction of the court. Whenever the court asked me to pay, I paid. As far as the extension is concerned, the court gave a direction to pay interest in a phased manner, 6 per cent on a certain portion and 9 per cent subsequently. I went to the court and said there was a mistake in the calculation of interest and could they please extend the time. The court said I should first pay and it would consider the question of miscalculation of interest later.

Answering the second part of your question, it is on record that there is a sum of Rs 71 lakh in fixed deposits that has been found invested in a finance company, Lynx India Ltd, unencashed. The receipts are today in the hands of the official liquidator, the company having gone bankrupt.

Q Why did you invest this money? Why did you not keep it in your bank account rather than invest in companies that later went into liquidation? This raises a whole lot of questions.

A Yes, it does. But keeping it in my bank account would have created a whole lot of further difficulties for me. At some point, I had to segregate (the accounts); the courts required the money to be separate.

Q What I don’t understand is how a person as intelligent as you, so well-versed in  matters of law, did not create a bank account that was only meant for the money that would come to you as a receiver, distinct from your personal account. If you had doubts, why did you not approach the court to give you directions on how this money should be parked and kept?

A You’re absolutely correct. But you see this happened in 1993, a long time ago. In August 2004, when this application of the private parties (involved in the dispute over ownership of the refractories) came up for hearing for the first time, I was discharged from further activities as a receiver, but without any direction to pay. That order was not served upon me. I did not know that.

Q Why was the order not served?

A I really don’t know. I got to know about the order during further proceedings. When the application came up for the first time and was pending disposal for a year-and-a-half, the court discharged me from further activities as a receiver but the order did not include directions to pay. You can say that there has been an error of judgement, but I do not accept the contention of misappropriation because I say that from 1993 to 1995, the Allahabad Bank and Standard Chartered accounts were operating at the same time. My perception on the basis of the 1993 order was that I would receive the entire purchase consideration after the purchase is completed, and whatever I received, I would separate. This continued for two-and-a-half years. When the purchaser stopped lifting materials, I then made a certain segregation (of accounts). But between 1993 and 1995, I had made an investment. That could be considered an error of judgement, as to the place of investment.

Q Especially in a company that subsequently went into liquidation...

A That error of judgement has (made me vulnerable) to so much prejudice... But I have ensured that nobody’s interest is prejudiced. I have paid back (the entire amount) with interest.

Q You admitted in your deposition before the Rajya Sabha that the money that belonged to SAIL was diverted to workers of Calcutta Fans and you made it out as if you had done nothing wrong. Many argue that this is not correct, that you did what you did knowingly. You were deposing before the Upper House of Parliament when it was for all intents and purposes like a court of law and this means you are also guilty of perjury, that is lying under oath.

A When I say I have done nothing wrong, that is my opinion. Perjury happens only when one makes a misstatement of fact. If my opinion is that the initial perception of misappropriation proceeded on the basis of withdrawal to unknown people, I want to establish that these are not unknown people, they are identified. There was money lying in fixed deposits, there was money lying in bank accounts. Investments could have been made by encashing the fixed deposits made in Lynx. What special benefit could have been derived by paying money from this account into Lynx, then bringing the fixed deposit money into the account?

Q That’s not the point. You should never have put that money into Lynx in the first place.

A My fight in this matter is that I want to establish that there is no misappropriation.

Q When you said in the Rajya Sabha that a lamb was being taken to the slaughterhouse and that a “ram cannot be taken to the slaughterhouse because it is difficult to catch”, were you indirectly referring to the political class?

A No, that was not my purpose. I merely said that unlike a lamb, a ram is difficult to catch.

Q Some people say you want to achieve martyrdom, because you have been cornered and have no way out.

A Martyrdom comes from conviction. My conviction is with regard to the allegation of misappropriation. I have never used anybody else’s money for personal purposes. It was a wrong judgement…These are facts. But there are certain legal issues also. If you say that in the matter of impeachment of a judge, facts and only facts are important and not law, then it takes a very different turn.

Q The well known lawyer Ram Jethlamani who is also an MP belonging to the BJP was scathing in his criticism of you. He even said that he refused to call you a “learned judge” but would only call you “respondent”. He also said that the respondent is not convicted because he misbehaved as a receiver. He said that you should have known that you were violating the provisions of the Indian Trust Act and he has gone on to argue that just because you are eloquent and a glib talker, that does not mean you should be spared. According to him, you can speak as much untruth as you want as long as there is no risk of interrogation and cross-examination. Mr Jethlamani argued that the House should not take a lenient view, and it should set a good precedent so that judges that are “of the same mould of mind as this judge” (meaning you) should realise that “the Parliament of this country will rise to the occasion and not do things which have been done in the past”. Your comments.

A If eloquence is a crime, then perhaps I am guilty of it. But my submission before the Rajya Sabha was with regard to procedure. If you disregard everything and go on facts, it gives a certain picture. But if you look at the procedure adopted against me, it gives another picture. The question is whether a procedure adopted in order to arrive at a conclusion should be free from bias. The motion which was moved by the members of the Rajya Sabha relies on a letter written by Justice K. G. Balakrishnan. He is relying on an in-house procedure for an investigation into my conduct. The reason is an allegation made against me by a single judge.

Q Do you think that the former Chief Justice of India Balakrishnan has something personal against you? You seem to have attacked him and alluded that at least there are no allegations against your family members illegally acquiring assets.

A This happened much later. These allegations are a new development. At that stage, what went on in the mind of the Honourable CJI, is not known to me. But from the way the case proceeded, I felt that it was rather more than necessary. In that same letter, he writes that he is proceeding to hold an enquiry against me on the basis of two judgements. Significantly, the second judgement of the single judge, when I approached the judge with the facts, what did he do? There is a common thing in law known as the ratio of the judgment. In this judgement, the judge says that he neither believes me nor disbelieves me. He, therefore, disposes of the application with liberty to appeal… As on July 2007, the single judge was not decided…So when the honourable CJI tells me that you respond to the allegations of the single judge, by that time the division bench judgement came and the division bench deleted all adverse inferences from the records of the case. So on that date there was no allegation against me. It is also clear that is no complaint against me as a judge. If there is no complaint existing on that date, what is the point of holding an enquiry under the in-house procedure?

Q It is clear that the allegations are related to your actions as a receiver- advocate and not as a judge.

A There is no dispute to that. Therefore, even if the CJI wanted to make an enquiry into my conduct, that conduct was examined by the High Court and found to be not so incorrect. The CJI has written to the Prime Minister about conducting an in-house procedure and that is the basis of the (impeachment) motion. That in-house procedure is a procedure adopted by the Supreme Court under a full court resolution. Justice Balakrishnan has categorically stated with regard to the judges’ assets disclosure case, when there was a huge hue and cry, that there is a full court resolution of the Supreme Court to the effect that Supreme Court judges should declare their assets. But Justice Balakrishnan has also publicly stated that this resolution is not mandatory and binding on high courts, because it is an internal affair of the Supreme Court. If any other high court wants to adopt it on the basis of a full court resolution, it can but there cannot be a mandate on a high court.

Q A huge debate is going on regarding the manner of appointment of judges. Mr Jaitley has said that you should never have been appointed a judge in the first place. Do you believe that we need to change the manner in which we appoint judges, that it should not be a closed club of brother judges, a collegium, that should decide who should be appointed and who should be elevated, but have a different system?

A When a judge is appointed, he signs a form and answers certain questions. There is no dispute about the veracity of the answers I have given to the questions asked. At present, the form that is signed includes a question as to whether a person has been a receiver and whether or not he has returned money he possessed as a receiver.

Q When you were appointed a judge, this particular question was not there...correct?

A So when you say why did I not disclose? The answer is that the occasion did not arise. I had absolute belief in the judicial system that since an application is already pending, a due order would be passed as prayed for by the plaintiff. If the court had allowed the entire application filed by the plaintiff, there would have been no difficulty. But in allowing the application, certain observations have been made.

As far as the system of appointing judges is concerned, I’m too small a person to comment on the subject. But I do believe that appointment of judges should be on the basis of competence.

Q Would you like to comment on corruption in the judiciary?

A I would like to comment on corruption everywhere. Is there corruption only in the judiciary? Is there not corruption elsewhere? Is the judiciary a separate section of society?

Q The difference is that the judges are expected to judge others on issues including whether they are corrupt or not. So it becomes all the more important to put in place a system whereby the integrity of judges is ensured.

A The measures should definitely be more stringent in the matter of the appointment of judges. There is no doubt about that.

Q Mr Yechury has said that if an example is made out of you and a precedent set by impeaching you, this will be good for the judiciary, that it will improve its image and that it will act as a deterrent for other judges.

A My reaction is that this will not act as a deterrent because the real issue of corruption and misbehaviour of a judge, while he is a judge, is a different issue altogether. While a judge, a person has to be absolutely above board. On the question of appointment, let’s consider an example. Assume a person has been a judge for 15 years and then it is discovered that as a student, he had joined a morcha, barged into the principal’s office and broken some chairs. That past conduct could be considered deplorable. But in this case what is happening is that -- as a matter of rule I say -- my actions are inextricably connected to my role as a receiver before I became a judge… Past conduct can always come under a scanner. But then you are opening a floodgate of actions against sitting judges who have been exemplary judges. It will create a very dangerous situation. This is what I am worried about. I’m not putting myself on a pedestal. I am not saying do not dissect my actions as a judge. But the general proposition that is being espoused today is, to my mind, a little dangerous because it will affect the independence of the judiciary.

Q Why do you think that much of the political class has targeted you?

A I don’t think I am the target. You are talking about corruption in the judiciary. Corruption is an issue that is very alive today. Everybody is talking about it. There is corruption among politicians, in the judiciary, in public life, in the media. The whole country is reeling under the impact of corruption. Look at the case of Mr (Suresh) Kalmadi. The media raised certain issues for six months or so, but the political class did not take any action. Only when the Supreme Court came into the picture, he was arrested. The same is true for Mr (A) Raja. When a corruption issue is raised against the political class, they (meaning politicians) join hands to protect their brothers.

Q So are you surprised that the judiciary is not coming together to protect you?

A The judiciary is not coming together to protect me.

Q Even within the judiciary, you are being treated as the black sheep.

A Absolutely. Don’t say judges join hands in protecting their brothers. They have never done it. It is not being done today. You see, perceptions between judges differ. One judge feels one way, another feels differently. That is why you have appeals and reversals (of judgements). Because the Supreme Court has taken a strong view, it is suggested that the appointment of judges should be taken away from the Supreme Court and put in the hands of the political class.

Q I don’t think it is anyone’s case that politicians should appoint judges?

A It has been discussed in different quarters that the Supreme Court should not retain the primacy in the appointment of judges.

Q That’s different from saying that politicians should appoint judges.

A Then who appoints judges?

Q You can have eminent jurists, a panel representing a cross-section of society.

A But this suggestion will come from politicians who will have to amend the Constitution and so it emanates from the political class.

Q What about the Judicial Accountability Bill?

A That’s something else. That is with regard to corruption in the judiciary. It will replace the Judges Enquiry Act.

Q How has your family taken all of this?

A I am very lucky to have excellent children and a very supportive wife. Life doesn’t come to an end.