2012 – HK DUA

Errant judges cannot abort impeachment motion

H K Dua (Nominated) moves

The Constitution (Amendment) Bill, 2012 (Amendment of Articles 124 an 217) in the Rajya Sabha on Dec 7, 2012.

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Shri H K Dua (Nominated): Thank you, Mr Deputy Chairman, for allowing me to start the discussion on my Bill, moved in the last session. In August, last year, the Rajya Sabha went through an unusual and rare experience when a Judge from the Calcutta High Court, Justice Soumitra Sen, sat in the dock. (interruptions).

Shri Ram Jethmalani: Please yield for a second. Sir, it is futile to carry on with the consideration of the Bill. Though I am extremely in favour of it, this Bill can’t be passed here because you don’t have the requisite number present. You require, at least, half the membership of the House to be present. You will unnecessarily lose the Bill.

Mr Deputy Chairman: We are discussing the Bill. We are only considering.

Shri Ram Jethmalani: But, Sir, there is no chance of passing it.

Mr DeputyChairman: You don’t know. People may come for vote. The Chair cannot presume like that.

Shri Jethmalni: Under Article 368, you require half the number of.., (interruptions).

Shri H K Dua: Hon. Jethmalani, I am hopeful. When you will start speaking, they will all come!

Shri Ram Jethmalani: I am here for you. But. …(interruptions)

Mr Deputy Chairman: Mr Dua, you please proceed.

Shri H K Dua: Mr Deputy Chairman, Sir, the Rajya Sabha saw a rare spectacle, and went through that experience which was very unusual, and it should remain rare if everything is well in the Judiciary and Parliament.

The Vice-Chairman ( Dr E.M. Sudarsana Natchiappan takes the Chair)

Justice Soumitra Sen of the Calcutta High Court sat over there in that corner in the House, in the dock specially put up for him, for over 100 minutes. This was for the first time that this House was trying to remove a Judge for misbehavior – after other avenues of getting rid of this Judge from the Judiciary had been exhausted.

Sir, we found that the Judge was a very smooth person. He made an elegant presentation, which was otherwise very weak in content. But he was too smooth. Possibly, he was much cleverer than the superior Judges who had selected him. He was cleverer than even the Judges of the Inquiry Committee that looked into his conduct. He was, I think, cleverer than we Members of Parliament also, as it turned out to be later.

What had the Judge done? He had kept public money as receiver and deposited it in his personal account. The reason the Inquiry Committee, appointed by the Chairman of this House on a petition by the Members of Parliament, found was that Justice Soumitra Sen had misappropriated the money, whatever the amount was. It was actually Rs 33 lakh. But the point is that even one rupee of public money is sacred when a Judge is in-charge of it. He was also accused by the Inquiry Committee, rather found guilty, that he had misled the High Court and thus also the Inquiry Committee.

The Inquiry Committee, then, came back to the Rajya Sabha and the Chairman, Rajya Sabha, admitted the removal, popularly known as impeachment motion. It was one of the best debates this House has ever had. In a very fractious nature of the House, there was almost unanimity in this House during the debate. Very eminent jurists, including Shri Ram Jethmalani, had participated in this discussion. Mr. Vice-Chairman, Sir, you had also participated in that discussion. Shri Sitaram Yechury, Mr Arun Jaitley and many other hon. Members had also participated in that discussion. Everybody had forgotten party differences and had tried to prove why this man should be removed from the Judiciary. The Motion was passed unanimously.

But what happens? The Judge was clever. Before the Impeachment motion goes to the Lok Sabha, he sends a handwritten piece of paper — called resignation — to the President and just walks out of the Judiciary! Justice P.D. Dinakaran, who was also, in a way, under the process of impeachment, saw that Parliament was in a punishing mood, he also resigned.

Shri H K Dua(Cont) Earlier, Justice Soumitra Sen was not resigning. The Chief Justice of India had told him that he better resign, because he had been found guilty of misappropriating public money which had been kept under his custody as a Receiver. Justice Sen didn’t heed that advice. He would not appear before the Inquiry Committee either. But he could not avoid Parliament. But, having had a say here in this House, and having foreseen Parliament passing the Motion for his removal next day unanimously, almost unanimously, he just sends a piece of paper and resigns from the court. This is a gross injustice to Parliament and the entire process of impeachment.

Here is a judge who has been found guilty by the Judiciary. The Chief Justice referred his case to the Government and the Government passed it on to the Chairman of Rajya Sbha, and, then, it came to Parliament which passed the removal Motion.

From here he gets away. The President has no role in all this – whether to accept or reject his resignation even if Parliament is seized of this grave matter. At the same time, Justice Sen ignores the spirit of the Constitution.

The Constitution had foreseen, but not very clearly, that there could be judges who would need to be thrown out of the Judiciary and a very rigorous process for removal of judges, which is popularly known as impeachment, was provided. It is indeed very rigorous. And, rightly so. Independence of the Judiciary has to be protected against any wanton act by Parliament to throw out judges. So, it is a very rigorous procedure. Despite its rigour,, he was found guilty and was sought to be removed by the Rajya Sabha. But Justice Soumitra Sen finds a lacuna in the Constitution.

I don’t think the founding fathers of the Constitution were innocent people, but they were more respectful to the Judiciary and they had never anticipated that there would be one day these kinds of judges who would need to be called before the House. The lacuna in the Constitution was that once a judge resigns under his own writing – they thought – it was enough for the purpose and a sense of responsibility would be exercised by a judge. The President has no role. So, my amendment to the Constitution —of Articles 124 and 217— provides to fill this lacuna. It is very simple. The amended clause will be now in place of article 124, the existing clause. It is mentioned in the Bill circulated to all the MPs The amended clause will read as: In Article 124 of the Constitution, in clause 2, in the second proviso for clause (a), the following be substituted namely:

“A judge may, by writing under his hand addressed to the President,

resigns his office” – and this is the proviso which is being added –

and in case, a judge is facing any proceedings for his removal under

Clause (4) or against whom any such proceedings are contemplated

then such resignation shall be effective subject to acceptance by the

President.”

So, ‘acceptance by the President’ is being made compulsory for a judge who resigns when the impeachment motion is going on in Parliament.

Similarly, in Article 217, an identical proviso is being added, which, again reads: “If a judge is facing any proceedings for his removal under clause (4) of Article 124 or against whom any such proceeding is contemplated then such resignation shall be effective subject to acceptance by the President.”

If these two provisos are accepted by this House and passed by both Houses according to the provisions of the Constitution — which Shri Ram Jethmalani has reminded us about — if this Constitution is amended with this proviso, I think, in future, no judge will cock a snook at Parliament and no judge will be able to get away from the impeachment proceedings of Parliament.

Shri H K Dua (Contd): Now, by resigning, Justice Soumitra Sen has avoided the stigma which an impeachment would have stuck on him if the process of impeachment had gone on fully; and that stigma would have gone into history, as he would have been the first Judge which India’s Parliament would have impeached, or removed, for misbehavior. Justice Dinakaran also has avoided impeachment. He was also a part of the proceedings, because the Inquiry Committee had been appointed by the Chairman of the Rajya Sabha.

Now, (a) they have avoided the stigma; (b) I have come to know that these two Judges are still getting the allowances and perks which they are entitled to, when they are no longer in service of the Judiciary. . Now, this is quite surprising. You commit a crime, you misuse your position, you keep the public money in private accounts, you amass wealth in one case and in the other case, you amass wealth disproportionate to your assets and much more than a Judge can afford to have, and then you get away, escaping any punishment? In both the cases, they have made a mockery of the process of removal and the Constitution.

I would like this lacuna to be filled and I would like the House to adopt this amendment to the Constitution and further the process of removal of Justice Soumitra Sen.

Thank you, Mr Vice-Chairman.

Mr H K Dua’s Reply to the Debate;

The Vice-Chairman(Dr E.M. Sudarsana Natchiappan):Thank you. Now, the Mover can make the reply.

Shri H K Dua (Nominated): Mr Vice-Chairman, Sir, I am very thankful to this House, particularly, the Members who have spoken. An illustrious set of Members is rarely to be seen in a Private Member’s Bill debate. So many of them spoke to lend their support to a Constitution Amendmednt Bill, which was an effort of a non-lawyer. Hon. Mr Ram Jethmalani sensed it. A lack of numbers was there. There was no way of passing a Constitutional Amendment Bill but he decided to sit through it to lend support to the effort so that it can ignite a public discussion, and, possibly give a thought to the Government to mull over, and, then come out with a suitable response through Constitutional amendment as proposed in my Bill.

Shri H K Dua (Contd.) We heard the illustrious speeches which came from Mr Arun Jaitley, from you, Mr Natchiappan, Mr Shantaram, Dr Abhishek Singhvi, Dr Ganguly, Dr Mungekar. They were all spontaneous as well as thoughtful in their support for the Bill.The debate was widened by you, Mr Jaitley, and others. Wider issues facing dispensation of justice at the present time by the courts, the quality of justice and the manner of dispensation, etc., were all touched upon.

Listening to the debate and the kind of unanimity that was prevailing for judicial reforms, I think, the Law Minister – I must thank him – was forthcoming. The Law Minister sensed the mood of the House and he feels that there is need for looking into many areas of judicial reforms which need Government’s attention.

The Law Minister has also accepted the principle behind the Bill, the intention behind my Bill, and the principle and the intention was exactly to start a discussion and ignite a thought in the Government’s mind and the Law Minister’s mind that something ought to be done.

I know a Private Member’s Constitution Amendment Bill cannot be passed. It has never been passed in the past. Even other Bills have not been passed, excepting one example, and that was Feroze Gandhi’s Bill, which was passed by Parliament. This bill related to the right of the Press to report Parliament proceedings — that press reporting from Parliament cannot be challenged outside, in the courts or anywhere else. That is the solitary Bill passed by our Parliament. No other Private Member’s Bill has been passed in the history of this Parliament. But, at some stage, I think, as pleaded by Dr. Mungekar, this question should be examined when the Private Members’ Bills are not to be passed because of convention. But, I am not on this issue today. I am thankful to the Law Minister to have responded to the spirit of the debate and the kind of positive mood the Bill has evoked from all sides, and he came out with equally positive response that this area needs to be looked into, and that this lacuna has to be sorted out. He admits there is a lacuna. How is it to be sorted out? Whether it is to be by a Constitutional Amendment, or whether it is to be an amendment to some other laws and procedure has to be thoughtfully considered – that he would like the issue to get examined. His personal preference seems to be to go through the route of the Judicial Standards and Accountability Bill. It is not that he is committing on that, and he should not commit without giving some thought. But he is giving this positive response to the spirit of the Bill and that he would like to do something about –- and that part is a commitment . What it is and how it is to be brought out, these are the two questions which need to be sorted out. Because of his assurance, I won’t press for the passing of the Bill.

Thank you. Mr Vice-Chairman and thanks to the House and all the Members who have given wide support to my Bill. I did not expect this much of support. It was indeed overwhelming.

Thank you, Mr Vice-Chairman.

(The Debate on H K Dua’s bill lasted over two hours. All parties supported the move).

Parliament Speech – 15th March, 2012

Transcript of the speech by H K Dua, MP, in the Rajya Sabha during the debate on the President’s Address on March 15, 2012

India a union of states, not a federation of states National consensus essential on terrorism

SHRI H.K. DUA (NOMINATED): Thank you Mr. Vice-Chairman,

Sir, I rise to support the Motion of Thanks. For the last two days, we have been discussing the President’s Address and a variety of opinions have been expressed. Some of them are in agreement while others are conveying differences.

I am happy about one thing: Parliament has come back on the rails, whatever may happen to the Railway Budget. Hopefully, in all its glory. This is the only way to sort out important national issues.

Dissent, differences, and a diversity of opinions are natural in a democracy. We

are a nation of over a billion people and there can be a billion issues. Statesmanship and leadership lie in sorting out and bringing about a consensus on important issues of national concern. We are, by nature, argumentative people. But we should not allow the argument to lead to a confrontationist atmosphere, which often develops in our debates. The discussion in the House, or outside, should not be allowed to become a kind of a zero sum game – your victory is my loss and my victory is your loss. Despite differences, the country has to evolve effective policies for India of the 21st Century — and that can be done only by exchanging ideas and a great deal of thought.

One of the questions, which has cropped up lately, is of the federal powers

and the state powers, of the federal rights and the Centre’s rights. My impression is – whatever I know about Constitution – we are not a federation of States. We are not a unitary State either. Founders of our Constitution had tried to evolve a unitary-cum-federal setup. In many areas, the Centre has got a prominent role; in some areas, the States have got prominent role; and, there is some overlap in a few areas, which are mentioned in the Concurrent List. There is also a provision for the residuary powers of the Centre.

But for a layman: If it is a national question, the solution has also got to be national; even the laws have to be national, which have to be followed across the boundaries of the states. Terrorism, for instance, is no longer a state question. The entire country is facing threat from terrorism. The terrorists have surprise as big a weapon. We do not know where the terrorist groups will strike next. 26/11 was a surprise, Delhi bomb blasts were a surprise, other incidents of terrorist violence in Mumbai, in Ajmer, and Hyderabad also were a surprise.

Most States have got to be vigilant. The country has to be vigilant. Now, differences have cropped up on the Centre’s proposal to set up NCTC. I am sure this question will be sorted out by talks between the Centre and the states. But to convert the whole question into the Centre versus the states or the states versus Centre, I think, is unfortunate. What needs to be done is: the Centre and the States together have to fight terrorism in the country. The terrorist threat is still serious. Steps have to be taken by the States and the Centre together to combat terrorism. One strategy should be adopted, whatever may be the outcome of the talks between the Centre and the States on NCTC.

Certainly, law and order is a State subject. But when a State is failing to combat on its own law and order situation, it asks for the assistance of the Army, the BSF or the CRPF. And such assistance is always given. The Centre also cannot fight terrorism alone because the State Police is closer to the ground and can sense trouble, from wherever it may come. Imagine, if a beat constable had been there at Badhwar Park in Mumbai on 26/11, I am sure the beat constable would have been able to find out where those rubber boats had come from. If a vigilant beat constable had been there, we would have come to know about the terrorist threat which was emerging and which brought about a very grisly event in country’s fight against terrorism. Our country has paid a heavy price for it. Thus, the Centre and the States have to fight terrorism together.

However, in tackling the law and order problem, the lead role should be of the state. The Centre should assist the states whenever they need to sort out the law and order situation. However, in fighting terrorism, the lead role should be of the Central Government and the States should assist. Together, I think, a kind of team spirit needs to be evolved on the NCTC, and on combating terrorism. I am sure, the states and the Centre will have the maturity to find a way out. I am told that more talks are going to take place very soon, in the near future to sort out the issue.

But what is needed, essentially, is a national consensus. Democracy cannot work without a consensus on major issues; and terrorism is one of them. Fighting naxalism is another matter of internal security needing consensus. Also, issues concerning external security need to be resolved by a consensus. I don’t think it is difficult to evolve a consensus among the leaders of various parties — they are all responsible. On these issues, there should be a national consensus. We will go far ahead —and much faster into the 21st Century — if major issues are kept out of partisan or a state-versus-Centre kind of controversies.

Sir, the world around India is changing fast. It is not going to wait for us. The House cannot ignore the kind of a situation that is developing around us. Three major powers are going to have a change in their rulers. Putin has just taken over as President again in Russia, practically. The USA is going to have presidential elections soon. We don’t know who the winner will be and what the policy of the United States will be. China is going to have new sets of rulers in a few months’ time. I think, by October they will be able to complete the process. But we do not know how these three powers are going to look at the world, particularly, this region, which is of vital importance to our country – and the South Asia and also West Asia. There is a situation developing in West Asia which should get the attention of the House and the Leaders of all parties –- the Government as well as those sitting on the Opposition Benches. The situation in West Asia can lead to a conflagration any time. It may not be imminent, tomorrow or the day after, but the situation can go out of hand in the near future.

Most of our oil comes from West Asia. Even a minor conflagration in a corner of West Asia can lead to a rise in oil prices. A major conflagration can lead to blockage of oil supplies to India. The closure of the Hormuz Straits, which was a threat only a few weeks ago, itself can be a serious development for India. No country has enough oil reserve; you can’t afford to keep oil in reserve for a long time. Secondly, 5.5 million people of India live in the Persian Gulf and other West Asian countries. If there is trouble in West Asia, do we have a plan to pull them out? The immensity of the task itself is forbidding. What we need to do is: play a more effective role in international affairs. We used to do that once upon a time during Jawaharlal Nehru’s days when we were not that strong. Now I think, when we have emerged as a country to reckon with, we can play a diplomatic role in sorting out the problems, particularly in the neighbourhood.

The Americans are going to quit Afghanistan in 2014 —in just two years’ time. They could not continue fighting that war for long. We need to work out a roadmap to safeguard our interests in Afghanistan as Afghanistan is important for us for our access to Central Asia. Who will fill the vacuum once the Americans leave? Are the local people going to fill the vacuum? The tenure of Karzai —with whom we signed a strategic partnership agreement only last year — is coming to end later this year.

Are the Taliban likely to come back to Kabul? Americans are already talking to the Taliban. They are not even letting Pakistan; and Hamid Karzai know what is the agenda of the talks. Now if the Taliban come to power in Kabul, what will be its impact on India’s policy on Afghanistan? What about India’s presence in Afghanistan? We have spent over USD 2 billion on Afghanistan’s development projects, which I am told have been doing well. And India’s presence in Afghanistan is welcome to the people. But once the Taliban, backed by Pakistan and ISI, come to power in Kabul, it will be a totally different situation for us. Thus, we need to draw a roadmap for whatever happens there after the US pull-out.

Our relations with the neighbours are better. Certainly, with Bangladesh, except for the Teesta issue – which I am sure, they will be able to sort it out one day by talks at home and by talks with Bangladesh. With Nepal, our relationship is much better under the new Prime Minister in Kathmandu. With Myanmar, our relationship has improved quite a bit and our Parliament has been visited by their delegations and the Head of the Government has been here. There is indeed much more understanding between Myanmar and India.

Sir, recently, in the Maldives, I think, we were taken by surprise by developments. The Maldives is of crucial importance to us considering our vital interests in the Indian Ocean. Are we, as a nation, bothered about the Indian Ocean? The Chinese Navy is very active and going to be more and more active in the Indian Ocean, despite its preoccupation in the Pacific. The Chinese are present in the Arabian Sea; they are present in the Bay of Bengal, and, in the Indian Ocean, their growing interest is well-known. We have a boundary problem with China; we have recurring problems or continuing problems with Pakistan, but we cannot ignore our

interests in the Indian Ocean. And, next time, if something happens in the Maldives, we should not be feeling surprised about it.

Now, the nexus between Pakistan and China. I don’ think there is going to be a war between India and China, but I assume the nexus between China and Pakistan is of a very vital concern to us. Pakistan and China have a relationship in the nuclear programme, and in the missile programme. Together these create a formidable defence situation for us.

I don’t think India can be complacent about the overall situation in the neighbourhood. What is the way out? The way out is that on the issues of security, internal and external security, plus defence matters, there is a need for having a consensus in the country. Along with this we have to develop the strength of our economy, plus military power, backed by national support emerging out of a national consensus. This can help us a great deal in meeting our challenges.

Thank you, Mr Vice Chairman.