India - Dealing with errant judges

The impeachment of a judge is a power vested in Parliament. What is unprecedented and extraordinary about the recommendation that Calcutta High Court Justice Soumitra Sen be removed from office is that it comes from the office of the Chief Justice of India. The grounds for Chief Justice K.G. Balakrishnan resorting to this step are clear. An internal inquiry set up by him found Justice Sen had indulged in “financial misconduct” by depositing in his personal bank account money he was given as a court-appointed receiver in a lawsuit. As the misconduct related to a period when Justice Sen was a lawyer, it raises the obvious question: why was he elevated as a High Court judge in the first place? While his elevation stresses the necessity for screening procedures to ensure that those appointed to the judiciary are beyond reproach, Justice Sen’s conduct is inexcusable. He returned the money, with interest, in 2006 only after a direction from the High Court. Following the adverse finding by the in-house inquiry committee, he was asked to resign or seek voluntary retirement. Chief Justice Balakrishnan’s recommendation that Justice Sen be impeached must be seen in the light of his obduracy about continuing in judicial office.
Justice Sen should step down immediately rather than embarrass himself, the judiciary, and the nation any further. Impeachment is a lengthy and cumbersome process, but the Centre, as Law Minister H.R. Bharadwaj suggested, has no option but to kick-start it following the recommendation of the Chief Justice of India. A notice needs to be signed by the required number of MPs (100 for the Lok Sabha and 50 for the Rajya Sabha), a fresh inquiry needs to be conducted under the Judges Inquiry Act 1968, and if found guilty the judge can be impeached only if the motion is supported by two-thirds of the members present and voting and an absolute majority of the total membership in each House. The uncertain nature of the impeachment process was demonstrated in 1993, when the motion against Justice V. Ramaswami was defeated because of the Congress party’s abstention. Although it is unlikely that Parliament will be divided on party lines in Justice Sen’s case, the recommendation that he be impeached highlights the absence of a quick and effective statutory mechanism to deal with charges against errant judges. It is important that such a mechanism covers not only cases where the misconduct of a judge warrants removal but also lesser transgressions that call for less extreme penalties such as censure, request for retirement, and non-allocation of work. Better judicial accountability is critical for the promotion of judicial independence, integrity, and impartiality.