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What happens when a tainted judge resigns? Does Parliament lose control over him? Extracts from constitutional conundrums: challenges to India’s democratic process raise some pertinent questions

By V Venkatesan


 

In 2011, the process of removal from office of two high court judges, Justice Soumitra Sen of the Calcutta High Court and Justice PD Dinakaran of the Sikkim High Court, by Parliament and ensuring their accountability failed to materialise for reasons mainly attributable to the flaws in the interpretation of the relevant legal provisions.

The Rajya Sabha Secretariat’s claim (as revealed by me under RTI) that the decision to wind up the Committee set up to inquire into allegations against Justice Dinakaran stems from his likely boycott of the proceedings (after his resignation) which would render the Committee’s report one-sided, is specious. Rule 8 of the Judges (Inquiry) Rules, 1969, provides the following: “Effect of non-appearance—If the Judge does not appear…the inquiry committee may proceed with the inquiry in the absence of the judge.”
When a judge does not appear before a committee, despite serving of notice on him in advance, it means that the judge admits the charges and the committee can go ahead with the inquiry as if the judge does not want to refute the charges.

INTERNATIONAL PRECEDENTS

Curious, however, was the claim of the Rajya Sabha Secretariat that it relied on certain international precedents to decide that, with Justice Dinakaran’s resignation, the Committee must be wound up. In its reply to the author under the RTI Act, the Secretariat admitted: “The Judges (Inquiry) Act, 1968, and the rules made thereunder do not provide for the winding up of the inquiry committee. The decision to wind it up was taken on the basis of law and precedents.” In particular, the legislative section of the secretariat, relied on the following precedents: (i) Judge Samuel B Kent (Southern District of Texas) resigned on June 30, 2009, (ii) Judge George W English (Eastern District of Illinois) resigned on November 4, 1926.

Both the precedents were not exactly the correct ones to follow in Justice Dinakaran’s case. In the United States, the process of impeachment and the process of removal are distinct. While the House of Representatives impeaches a judge (the word “impeachment” is understood in the United States as framing of charges), it is the Senate which holds the trial and removes the judge from office. It is correct that both these Judges resigned, before their removal by the Senate, forcing it to drop the removal proceedings. But they did not resign before being impeached by the House of Representatives.

The reliance on these two precedents also ignores other facts. Judge Kent pleaded guilty to the charge that his sexual conduct with his female victims was non-consensual and to the charge of lying to the investigators. Because of this plea deal, federal prosecutors dropped five sex-crime charges alleging that he groped two women. If convicted of all the charges, he would have spent his entire life in prison. He was sentenced to 33 months in prison by the federal grand jury for aggravated sex abuse, abusive sexual contact, and obstruction of justice, before he resigned on the eve of the trial by the Senate for removal.

In 2011, he completed the jail term. In contrast, the winding up of the Inquiry Committee to probe charges against Dinakaran meant that Parliament not only dropped the removal proceedings, but also abandoned the only recourse to establishing charges against him, let alone the question of punishing him if the charges had been established.

SENATE DECIDES

Judge English was accused of abusing lawyers and litigants appearing before him. He was charged with usurpation of powers and other high misdemeanors. The House of Represen-tatives had already determined him to be unfit to further perform the duties of Judge. The report on this case indicates that the Senate has the privilege to decide whether to continue a trial, despite the resignation of the Judge. Reliance on this case would suggest that even if it is conceded that Parliament can drop the removal proceedings, including an ongoing inquiry against a judge after his resignation, the sole authority to do so should have been the House itself, rather than the Presiding Officer in his individual capacity. The element of arbitrariness in winding up the Committee is a disappointment, especially because a huge expenditure has been incurred on its work without any corresponding gains on judicial accountability.

The committee spent Rs. 1,63,98,204 before it was wound up, as per the provisional figures, released by the Rajya Sabha secretariat under the RTI Act to the author, through its reply dated December 1, 2011. This expenditure includes payment made to the personnel of the committee, office expenses and professional fees, although no payment was made to the members of the committee.

DEROGATORY CONDUCT

In 1951, the Provisional Parliament was debating the expulsion of its member HD Mudgal, belonging to the Congress, in connection with his dealings with Bombay Bullion Association, which included canvassing support and making propaganda in Parliament…on behalf of that association in return for alleged financial and other business advantages. A five-member inquiry committee, comprising of MPs set up by Parliament, held that his conduct was derogatory to the dignity of the House and inconsistent with the standards which Parlia-ment was entitled to expect of its members. It, therefore, recommended the expulsion of the member from the House. He resigned before Parliament was to debate and vote on the Prime Minister’s motion to accept the Commi-ttee’s findings and to expel him. Before submitting his resignation, Mudgal got an opportunity to defend himself and speak against the motion for over 90 minutes.

Mudgal’s sudden resignation raised the question whether it abruptly brought to an end the proceedings which were going on in the motion moved by the Prime Minister. A debate on this point took place on 24 and 25 Sept-ember 1951, in which several members participated. It was held that the fact that a member had resigned his membership did not bring the existing proceedings to a stop. It was felt that the House had not lost its jurisdiction over the member although he had ceased to be a member of the House. The authority of Parliament was exercisable over both the members of the House as well as the members of the public. The House deprecated the attempt of the member to circumvent the effects of the motion that was before the House by way of resigning his membership. The House passed a resolution which not only recommended the expulsion of Mudgal, but also found his act of resignation amounting to contempt of the House which only aggravated his offence.

A similar argument can be advanced in the cases of removal from office of Justices Soumitra Sen and Dinakaran. Even though they had resigned in order to scuttle the Parliamentary process of removal, Parliament did not lose its jurisdiction over them; they could not claim the protection of independence of judges as they had resigned and became ordinary members of the public. Therefore, Parliament must have continued the removal process to its logical conclusion in both the cases, despite their resignations.

During the debate on Mudgal, Nehru said: “If the House does not express its will in such matters in clear, unambiguous and forceful terms, then, doubts may very well arise in public mind as to whether the House is very definite about such matters or not.” Lok Sabha’s decision to drop the removal process against Justice Soumitra Sen and Rajya Sabha chairman’s ill-advised move to prematurely terminate the inquiry committee against Justice Dinakaran have created such doubts.

Book Cover..

Constitutional Conundrums:Challenges to India’s Democratic Process

By V Venkatesan
Published by LexisNexis

Pages: 420

Cost : Rs. 495

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