Allegations against Justice Soumitra Sen: Inquiry Committee Report

Sana - December 10, 2010

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”.

Legislation

How long can the central government take to frame Rules?

Saket Surya - Oct 21, 2022

On October 18, it was reporte d in the news that the central government has been given more time for framing rules under the Citizenship (Amendment) Act, 2019. The President had given assent to this Act in December 2019 and the Act came into force in January 2020. Similarly, about two years have passed since the new labour codes were passed by Parliament, and the final Rules are yet to be published. This raises the question how long the government can take to frame Rules and what is the procedure guiding this. In this blog, we discuss the same.

Under the Constitution, the Legislature has the power to make laws and the Executive is responsible for implementing them. Often, the Legislature enacts a law covering the general principles and policies, and delegates the power to the Executive for specifying certain details for the implementation of a law. For example, the Citizenship Amendment Act provides who will be eligible for citizenship. The certificate of registration or naturalization to a person will be issued, subject to conditions, restrictions, and manner as may be prescribed by the central government through Rules. Delay in framing Rules results in delay in implementing the law, since the necessary details are not available. For example, new labour codes provide a social security scheme for gig economy workers such as Swiggy and Zomato delivery persons and Uber and Ola drivers. These benefits as per these Codes are yet to be rolled out as the Rules are yet to be notified.

Timelines and checks and balances for adherence

Each House of Parliament has a Committee of Members to examine Rules, Regulations, and government orders in detail called the Committee on Subordinate Legislation. Over the years, the recommendations of these Committees have shaped the evolution of the procedure and timelines for framing subordinate legislation. These are reflected in the Manual of Parliamentary Procedures issued by the Ministry of Parliamentary Affairs, which provides detailed guidelines.

Ordinarily, Rules, Regulations, and bye-laws are to be framed within six months from the date on which the concerned Act came into force. Post that, the concerned Ministry is required to seek an extension from the Parliamentary Committees on Subordinate Legislation. The reason for the extension needs to be stated. Such extensions may be granted for a maximum period of three months at a time. For example, in case of Rules under the Citizenship Amendment Act, 2019, at an earlier instance, an extension was granted on account of the onset of the COVID-19 pandemic.

Activity	Timeline
Publication of Rules, Regulations, and Bye-Laws, where public consultation is required under the Act	A minimum of 30 days for public feedback Consequently, for publication, Three months, if the number of suggestions is small Six months, if the number of suggestions is large
Publication of Rules, Regulations, and Bye-Laws, not requiring public consultation	Six months from the date on which the concerned Act came into force
Any extension for publication	A maximum of three months at a time

To ensure monitoring, every Ministry is required to prepare a quarterly report on the status of subordinate legislation not framed and share it with the Ministry of Law and Justice. These reports are not available in the public domain.

Recommendations to address delays

Over the years, the Subordinate Legislation Committees in both Houses have observed multiple instances of non-adherence to the above timelines by various Ministries. To address this, they have made the following key recommendations:

Statement on reasons for the delay: In 2011, Rajya Sabha Committee recommended that while laying Rules/Regulations before Parliament, the Ministry should also lay a statement explaining the reasons for the delay, if any.
Scrutiny of delays by the Cabinet Secretary: In 2016, the Rajya Sabha Committee recommended that the Cabinet Secretary should continue the practice of calling the Secretaries of concerned Ministries/Departments, to explain the reasons for the delay in framing the subordinate legislation. Each Ministry should send a quarterly status report to the Cabinet Secretariat.
Revisiting guidelines: In 2011, Lok Sabha Committee recommended that the 1986 guidelines should be revisited and all major recommendations of the Committee should be incorporated. However, as per the Action Taken Report, the government observed that the ministries consider the extant guidelines adequate and these guidelines were re-iterated in 2012.

Are all Rules under an Act required to be framed?

Usually, the expressions used in an Act are “The Central Government may, by notification, make rules for carrying out the provisions of this Act.”, or “as may be prescribed”. Hence, it may appear that the laws aim to enable rule-making instead of mandate rule-making. However, certain provisions of an Act cannot be brought into force if the required details have not been prescribed under the Rules. This makes the implementation of the Act consequent to the publication of respective Rules. For example, the Criminal Procedure (Identification) Act, 2022 enables the police and certain other persons to collect identity-related information about certain persons. It provides that the manner of collection of such information may be specified by the central government. Unless the manner is prescribed, such collection cannot take place.

That said, some other rule-making powers may be enabling in nature and subject to discretion by the concerned Ministry. In 2016, Rajya Sabha Committee on Subordinate Legislation examined the status of Rules and Regulations to be framed under the Energy Conservation Act, 2001. It observed that the Ministry of Power had held that two Rules and three Regulations under this Act were not necessary. The Ministry of Law and Justice had opined that those deemed not necessary were enabling provisions meant for unforeseen circumstances. The Rajya Sabha Committee (2016) had recommended that where the Ministry does not feel the need for framing subordinate legislation, the Minister should table a statement in Parliament, stating reasons for such a conclusion.

Some key issues related to subordinate legislation

The Legislature delegates the power to specify details for the implementation of a law to the Executive through powers for framing subordinate legislation. Hence, it is important to ensure these are well-scrutinised so that they are within the limits envisaged in the law.

Capacity of Committees on Subordinate Legislation: Parliamentary Committees on Subordinate Legislation have the responsibility to examine Rules in detail. In past, they have examined some key rules, regulations, and notifications regarding e-commerce, liability of internet-based services, and demonetisation. However, usually, they are able to examine only a fraction of subordinate legislation in detail. For more details, please see the PRS discussion paper here.
Uniformity of standards: Countries such as UK, USA, Australia, and Canada have overarching legislation for regulating the framing of subordinate legislation. These laws provide for the manner of public consultation, timelines, drafting standards, and a common register. India does not have any similar law. In India, the detail whether public consultation for subordinate legislation is required or not, is specified in respective Acts. The General Clauses Act, 1897 also governs certain aspects of the framing of subordinate legislation. In addition, the Pre-Legislative Consultation Policy, 2014 guides the pre-legislative consultation on subordinate legislation.

See here for our recently published analysis of the Criminal Procedure (Identification) Rules, 2022, notified in September 2022. Also, check out PRS analysis of:

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Allegations against Justice Soumitra Sen: Inquiry Committee Report

How long can the central government take to frame Rules?

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