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Updated: October 21, 2011 22:58 IST

Soumitra Sen's removal proceedings challenged

Legal Correspondent
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Calcutta High Court judge Soumitra Sen leaves the Rajya Sabha after defending himself during the impeachment proceedings against him. File photo
The Hindu Calcutta High Court judge Soumitra Sen leaves the Rajya Sabha after defending himself during the impeachment proceedings against him. File photo

A Kolkata advocate moves Supreme Court, saying procedure does not conform to constitutional provisions

A Kolkata advocate has moved the Supreme Court questioning the procedure adopted in Parliament for removal of Justice Soumitra Sen of the Calcutta High Court, and sought a declaration that it was null and void as it did not conform to the constitutional provisions.

In his writ petition, Subasis Chakraborty said though Justice Sen had resigned (during the removal proceedings) the court should clearly interpret Article 124 (4) and (5). He sought a declaration that the notice of motion and the address of the report of the statutory committee on the basis of proved misbehaviour and the motion adopted by the Rajya Sabha for the removal of Justice Sen were vitiated on the ground that the action was not in compliance with constitutional and statutory requirements.

In the Rajya Sabha, the CPI(M)'s Sitaram Yechury moved the motion, stating the charges against Justice Sen were specific and there was no ambiguity about them. Thereafter, Justice Sen presented his defence, pleading not guilty, the petition said.

It said: “After Justice Sen's presentation, he was instructed by the Chairman to leave the House, and the debate on the motion commenced, in which various members, without reference to the report and the charges levelled against Mr. Sen, spoke in general, criticising the judiciary and the conduct of judges. On August 18, 2011 too, the debate continued … and, upon instruction in the normal course of business of the House, the vote for motion was made by a button for green light being pressed and thereafter, on counting, the motion was passed by 189 votes in favour of and 17 votes against.” It was announced by the Chairman as passed.”

On September 1, Justice Sen wrote a letter to the Lok Sabha Speaker, defending himself against the allegations and intimating her of his decision to resign because he expected the “unfair procedure” adopted by the Rajya Sabha — not allowing rebuttal of allegations made against him in his absence and limiting his time for defence in advance — to be repeated in the Lower House and so the passing of the motion was a foregone conclusion. The same day, he submitted his formal resignation to the President, citing these reasons, and marking a copy to the Speaker.

On September 4, the government notified his resignation. While seeking interpretation of Article 124 (4) and (5), the petitioner also wanted an interpretation of Section 6 of the Judges (Enquiry) Act, 1968, viz. the procedure for the “presentation of an address of proved misbehaviour of a judge (both the High Court and the Supreme Court)” before Parliament.

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Though Justice Mr. Sen has resigned the process of Impeachment motion against him has exposed many issues requiring interpretation. Principles on benefit of doubt, fair and unbiased mind, irrelevant and unwarranted observations of the MPs who acted as Juries in the absence of accused etc. require interpretations. It is the first opportunity for the Apex court to give the correct interpretation of Law on Impeachment of a Judge. Such interpretation will hopefully cover the privilege of Members of Parliament and Assembly also.

from:  Prof. N. Gunachandran
Posted on: Oct 22, 2011 at 07:25 IST
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