On December 1, 2010, the Judicial Standards and Accountability Bill was introduced in the Lok Sabha.  The Bill revamps the present system of inquiry into complaints against judges.  The case of Justice Sen was the one of the more recent instances where the integrity of judges has been called into question.

A motion was moved by 58 members of the Rajya Sabha for the removal of Justice Soumitra Sen, (a Judge of the Calcutta High Court) on grounds of misappropriation of funds. The Chairman, Rajya Sabha constituted an Inquiry Committee on March 20, 2009 to look into the matter. The Committee comprising Hon’ble Justice B. Sudershan Reddy (Chairman), Hon’ble Justice T.S.Thakur and Shri Fali S. Nariman submitted its report on September 10, 2010.

Charges framed in the Motion

The two charges which led to an investigation into alleged misconduct of Justice Soumitra Sen were:

  • Misappropriation of large sums of money, which he had received in his capacity as Receiver appointed by the High Court of Calcutta; and
  • Misrepresentation of facts with regard to the misappropriation of money before the High Court of Calcutta

 

General observations of the Committee on the case:

  • Justice Sen’s assertion that he had the right to remain silent during the investigations was fallacious.
  • He did not cooperate with the Court proceedings; was not present for hearings, did not furnish information requested by the Court and did not provide any evidence in his defence.

 

Facts and Findings of the investigation by the Committee:

a. During the period he was an Advocate:

  • Justice Soumitra Sen was appointed Receiver in a case by an order of the Calcutta High Court on April 30, 1984. A Receiver appointed by the High Court has the power to collect outstanding debts and claims due in respect of certain goods.
  • As required by the High Court, the Receiver should file and submit for passing,     his half yearly accounts in the Office of the Registrar of the High Court. However, Justice Sen did not comply with this rule both as an Advocate and a Judge.
  • The High Court requires the Receiver to open only one account and not move funds without prior permission. However, the Committee found that two separate accounts were opened by Justice Soumitra Sen as Receiver, with ANZ Grindlays Bank and Allahabad Bank.
  • A total sum of Rs 33,22,800 was transferred in these accounts from the sale of proceeds of the goods which was not accounted for either when Justice Sen was an Advocate or when he was made a High Court Judge.
  • Justice Sen claimed he could not account for this amount since it was invested in a company called Lynx India Ltd. to earn interest. The Committee found this claim to be false as well.
  • The Committee concluded that this was a case of misappropriation of funds as both of the Receiver’s bank accounts were closed with a nil balance without any investments being made on behalf of the High Court.

b. During the period he was a Judge:

  • Justice Soumitra Sen was appointed a High Court Judge on December 3, 2003. The committee noted that Justice Sen’s actions were, “an attempt to cover up the large-scale defalcations of Receiver’s funds”.
  • After he became a Judge he did not seek any permission from the Court for approval of the dealings, as required by the Court, nor did he account for the funds.

Conclusion

Based on the findings on the two charges the Inquiry Committee was of the opinion that Justice Soumitra Sen of the Calcutta High Court is guilty of “misbehaviour”.

Tribunals function as a parallel mechanism to the traditional court system.  Tribunals were established for two main reasons - allowing for specialised subject knowledge in disputes on technical matters and reducing the burden on the court system.  In India, some tribunals are at the level of subordinate courts with appeals lying with the High Court, while some others are at the level of High Courts with appeals lying with the Supreme Court.  In 1986, the Supreme Court ruled that Parliament may create an alternative to High Courts provided that they have the same efficacy as the High Courts.   For an overview of the tribunal system in India, see our note here.

In April 2021, the central government promulgated an Ordinance, which specified provisions related to the composition of the search-cum-selection committees for the selection of members of 15 Tribunals, and the term of office for members.  Further, it empowered the central government to notify qualifications and other terms and conditions of service (such as salaries) for the Chairperson and members of these tribunals.  In July 2021, the Supreme Court struck down certain provisions of the Ordinance (such as the provision specifying a four-year term for members) stating that these impinged on the independence of the judiciary from the government.  In several earlier judgementsthe Supreme Court has laid out guidelines for the composition of Tribunals and service conditions to ensure that these Tribunals have the same level of independence from the Executive as the High Courts they replace.  

However, Parliament passed the Tribunals Reforms Bill, 2021 in August 2021, which is almost identical to the April Ordinance and includes the provisions which had been struck down.  This Act has been challenged in the Supreme Court.  For a PRS analysis of the Bill, please see here.  

On 16th September 2021, the central government notified The Tribunal (Conditions of Service) Rules, 2021 under the Tribunals Reforms Act, 2021.  A couple of the provisions under these Rules may contravene principles laid out by the Supreme Court:

Appointment of the Administrative Member of the Central Administrative Tribunal as the Chairman

In case of the Central Administrative Tribunal (CAT), the Rules specify that a person with at least three years of experience as the Judicial Member or Administrative Member may be appointed as the Chairman.  This may violate the principles laid down by the past Supreme Court judgements.  

The CAT supplants High Courts.  In 1986, the Supreme Court stated that if an administrative tribunal supplants the High Courts, the office of the Chairman of the tribunal should be equated with that of the Chief Justice of the High Court.  Therefore, the Chairman of the tribunal must be a current or former High Court Judge.  Further, in 2019, the Supreme Court stated – “the knowledge, training, and experience of members or presiding officers of a tribunal must mirror, as far as possible, that of the Court it seeks to substitute”.  

The Administrative Member of the CAT may be a person who has been an Additional Secretary to the central government or a central government officer with pay at least that of the Additional Secretary.  Hence, the Administrative Member may not have the required judicial experience for appointment as the Chairman of CAT.

Leave Sanctioning Authority

The Rules specify that the central government will be the leave sanctioning authority for the Chairperson of tribunals, and Members (in case of absence of the Chairperson).   In 2014, the Supreme Court specified that the central government (Executive) should not have any administrative involvement with the members of the tribunal as it may influence the independence and fairness of the tribunal members.  In addition, it had observed that the Executive may be a litigant party and its involvement in administrative matters of tribunals may influence the fairness of the adjudication process.   In judgements in 1997 and 2014, the Supreme Court recommended that the administration of all Tribunals should be under a nodal ministry such as the Law Ministry, and not the respective administrative ministry.  In 2020, it recommended setting up of a National Tribunals Commission to supervise appointments and administration of Tribunals.  The Rules are not in consonance with these recommendations.