A recent case before the Supreme Court has once again highlighted the issue of judicial decisions potentially replacing/ amending legislation enacted by Parliament. The case importantly pertains to the judiciary’s interpretation of existing law concerning itself. The eventual outcome of the case would presumably have important implications for the way the higher judiciary interprets laws, which according to some amounts to the judiciary “legislating” rather than interpreting laws. This assertion has often been substantiated by citing cases such as Vishaka v. State of Rajasthan (1997) where the Supreme Court actually laid down the law pertaining to sexual discrimination at workplaces in the absence of a law governing the same. In numerous other cases, courts have laid down policy guidelines, or have issued administrative directions to governmental departments. In the recent case of Suraz India Trust v. Union of India, a petition has been filed asking the court to reconsider its own judgements regarding the manner of appointment and transfer of judges. It has been contended that through its judgements in 1994 and 1998 (Advocate on Record Association v. Union of India and Special Reference No. 1 of 1998) the Supreme Court has virtually amended Constitutional provisions, even though amendments to the Constitution can only be done by Parliament. This question arises since the Constitution provides for the appointment and transfer of judges by the government in consultation with the Chief Justice of India. The two Supreme Court judgements however gave the primary power of appointment and transfer of judges to the judiciary itself. Importantly, one specific question which has been raised is whether the judgements referred to above really amount to amending the relevant provisions of the Constitution. Another question raised which is relevant to this discussion is whether the interpretation by courts can actually make provisions in the Constitution redundant. In its judgement on the 4th of April, the Supreme Court referred this case to the Chief Justice of India for further directions. The outcome of this judgement could potentially require the Supreme Court to define the circumstances when it interprets law, and when it “legislates”. An indication of the Supreme Court's attitude concerning this issue may be gleaned from the recent speech of the Chief Justice of India, Justice S.H. Kapadia at the M.C. Setalvad lecture. The CJI unambiguously stated that: "...In many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of government have failed or are indifferent to the solution of the problem. In such matters, I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance..."
Parliament is expected to take up a motion for impeaching Justice Soumitra Sen of the Calcutta High Court. We wrote an FAQ on the process of impeachment and the facts of this case for Rediff. See: http://www.rediff.com/news/report/faq-on-impeachment-of-judges/20110816.htm The full text is reproduced below. What is the importance of Parliament's discussion on the Justice Sen issue? The Rajya Sabha is scheduled to discuss a motion for the removal of Justice Soumitra Sen of the Calcutta High Court. Till date, no judge of the higher judiciary (Supreme Court and High Courts) has been successfully impeached. What is the legal framework regarding impeachment of judges? The Constitution has measures to ensure the independence of the judiciary from executive action. This helps judges give judicial decisions in a free and fair manner without any inducements. The Constitution also provides checks against misbehaviour by judges. It states that a judge may be removed only through a motion in Parliament with a two thirds support in each House. The process is laid down in the Judges (Inquiry) Act, 1968. How is the motion initiated? What is the process after that? A motion has to be moved by either 100 Lok Sabha members of Parliament or 50 Rajya Sabha MPs. If the motion is admitted, the Speaker of Lok Sabha or Chairman of Rajya Sabha constitutes an inquiry committee. The committee has three members: a Supreme Court judge, a High Court Chief Justice, and an eminent jurist. The Committee frames charges and asks the judge to give a written response. The judge also has the right to examine witnesses. After the inquiry, the committee determines whether the charges are valid or not. It then submits its report. What happens then? If the inquiry committee finds that the judge is not guilty, then there is no further action. If they find him guilty, then the House of Parliament which initiated the motion may consider continuing with the motion. The motion is debated. The judge (or his representative) has the right to represent his case. After that, the motion is voted upon. If there is two-thirds support of those voting, and majority support of the total strength of the House, it is considered to have passed. The process is then repeated in the other House. After that, the Houses send an address to the President asking that the judge be removed from office. Has this process taken place earlier? Yes, there has been one such case. Justice Ramaswamy of the Supreme Court faced such a motion. The inquiry committee found that the charges against him were valid. However, the motion to impeach him did not gather the required support in Lok Sabha. What are the charges against the Justice Sen? There are two charges. He is accused of misappropriating large sums of money which he received as a receiver appointed by the Calcutta High Court. He is also accused of misrepresenting facts in this regard to the High Court. What is the charge of misappropriation? What did the inquiry committee conclude? Justice Soumitra Sen was appointed Receiver in a case by an order of the Calcutta High Court on April 30, 1984. As a Receiver, Justice Sen had the power to collect outstanding debts and claims due in respect of certain goods. The Receiver is required to 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. As a Receiver, Justice Sen was required to open only one account and not move funds without prior permission. However, the Inquiry 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 over Rs 33 lakh was transferred in these accounts from the sale of the goods which was unaccounted for. 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 Inquiry Committee found this claim to be false as well. It was found that the amount transferred to Lynx India Ltd. had been made out of an account opened by Justice Sen in his own name. The Committee concluded that (a) there was a large-scale diversion of fund, and (b) such diversion was in violation of the orders of the High Court. The purpose for such diversion remains unexplained. This action was done by him as an advocate? Are there any charges against him after he was appointed as a judge? Justice Soumitra Sen was appointed a High Court Judge on December 3, 2003. The Inquiry 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. Is there any other case? What is the status? Another such motion has been initiated against Chief Justice Dinakaran of Sikkim High Court. An Inquiry Committee is looking investigating the issue. However, Mr Dinakaran has reportedly sent in his resignation to the President. If the resignation is accepted, then the motion to remove him will become ineffective.
