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Justice Sen plays victim to a rapt Rajya Sabha by Maneesh Chhibber

Facing an impeachment motion, Calcutta High Court judge Soumitra Sen, who appeared before the Rajya Sabha today, claimed that he was being made the “sacrificial lamb to cleanse the judiciary”, and that the allegations of misconduct and misappropriation of funds against him were part of a predetermined move to remove him.

Pointing a finger at former Chief Justice of India K G Balakrishnan for recommending his impeachment, Sen said: “The real issues are swept under the carpet. I have got three instances how the real issues of corruption were dealt by him. We all know about the provident fund scam of the Allahabad High Court. A key witness died inside a jail under mysterious circumstances. What has been done? A briefcase containing Rs 15 lakh was found outside a judge’s chamber. The CBI wanted to prosecute. The sanction to prosecute was refused by Justice K G Balakrishnan. Is this the way that one judge should be treated as against the other? I definitely say one wrong does not make the other right. But I am not wrong.”

The two charges against Sen, who could become the first judge in independent India to be removed from his post through impeachment, are: misappropriation of large sums of money — which he received in his capacity as receiver appointed by the Calcutta HC — and making false statements and misrepresenting facts with regard to the misappropriation.

Trying to give a new twist to the proceedings, Sen claimed that then CJI Balakrishnan and two senior judges of the apex court — Justice B N Aggarwal and Justice Ashok Bhan — had a meeting with him at the CJI’s residence after he filed his reply to the “in-house committee” and asked him to take voluntary retirement.

“There is no official record of that meeting with the other superior judges there; you would search in vain. There is no official communication to me... Interestingly, VRS was offered. Now, have you ever seen an organisation or an institution where an employee charged with defalcation of funds is rewarded with VRS? I would have gone back happy with quite a few lakhs of money because I had a long tenure of service left, and I still have a long tenure of service left. So, first carrot; the stick is coming later,” he said.

Sen said the senior Judges told him that if he resigned, “we shall ensure that you get a good post in some public sector undertaking. I am willing to say this, standing here, before this august House, openly. I challenge anybody to dispute it.” He claimed he was told that “if I do not take any of the options, I will be further investigated by an Inspector of CBI and, if necessary, third degree will be applied to me.”

Questioning the impeachment proceedings, Sen said he had been let off by a Division Bench of the Calcutta High Court, which had expunged strictures passed against him by a single Judge. He also claimed that the Rajya Sabha was committing an error in judgment by trying to impeach him as the members were not aware of the facts of the case.

“I have exhausted my remedies in accordance with law. I have come here to seek justice. If you impeach me, it will be the gravest of injustice done ever. Kindly apply your mind before deciding on the judgement, as it is a question of my life,” said Sen.

“It seems that the concept of presumption of innocence has now been reversed into a concept of presumption of guilt. The moment somebody is alleged to have committed some offence, it is presumed to be true,” he said.

Saying that under the Constitution, a Judge can be impeached only for “proven misbehaviour”, he asserted that he would prove “from the facts as revealed from the inquiry committee itself that there has been no misappropriation in fact and in law”.

Presenting his case from a ‘Bar’ posted at the gate of the central aisle of the Upper House facing Chairman Hamid Ansari, Sen also questioned the legality and constitutionality of the “in house” procedure, saying the Supreme Court “does not have administrative control over the High Courts and they are independent in nature”.

“Today, Supreme Court is saying that it is all powerful. Why did they not bring the judgment (of the Division Bench) to Supreme Court and set it aside on the judicial side? If they are all powerful, they can do that. You allow the judgment to attain a stage of finality; nobody prefers an appeal. I cannot prefer an appeal, because I have won in that matter. Today, it is being said that I cannot take shelter under a judicial verdict. Therefore, how can a person acquitted by judicial process again be held guilty in a non-judicial process?” he asked.

In his response, Leader of Opposition in the Rajya Sabha Arun Jaitley said Sen was guilty of a “continued proven misbehavior” as it began “from his days as a lawyer when he was appointed as a receiver and this continued well into his tenure as a Judge of the Calcutta High Court”.

“He never rendered the accounts as directed by the courts, both as a lawyer and as Judge. He created encumbrances, by withdrawing monies, which were in his custody as a receiver of the court. He transferred these monies unauthorisedly to persons not authorised to receive them. He withdrew the monies himself. He transferred the money to another account...Even after his elevation as Judge in 2003, he continued the misappropriation of monies. His case squarely falling under Section 403 of the IPC of temporary misappropriation of monies is a criminal offence. In any case, he continued to retain these monies till 2006. He only returned the monies under the coercive order of the court and not otherwise,” said Jaitley.

Supporting the impeachment motion, Jaitley said, “Sen’s conduct as a litigant was unfortunate. He led no evidence. He hardly cross-examined witnesses. He claimed the right of silence. He then misrepresented and put up a false defence... A case of proven misconduct is made out against him. A Judge has to lead by example. A Judge cannot rely on technicalities and try to escape the rigours of law. Litigants cannot be judged by a Judge, who himself is stigmatised. The defence of Justice Sen has thus to be rejected.”

While the debate is set to continue tomorrow, the impeachment motion, which was introduced today by CPI(M) leader Sitaram Yechury, will have to be passed by a two-third majority of those present and voting in both the Houses. Once passed, the motion will have to be presented to the President in the same session.