New Delhi, Aug. 18: The Rajya Sabha passed the motion to impeach Calcutta judge Soumitra Sen with an overwhelming majority — an expected outcome preceded by several uncommon opinions and gestures.

First, it was openly declared that the current way of appointing judges has created an impression that it was a “system of sharing the spoils”. Mention was also made of a perception that “almost every retiring judge, barring a few honourable exceptions,” believes in an entitlement to a job after retirement, which raises the doubt if judgments at times get influenced in the twilight years on the bench.

Second, some MPs, especially those who double as lawyers, do their homework and will burn midnight oil to crosscheck your claims. So, don’t bluff.

Third, they can also poke fun at themselves, including a “Sita-Ram” who did not miss the political irony of being on the same side of a Ram, and can give back as good as they get.

Fourth, some MPs are not beyond citing their personal loss — this time, the missed chance to become a judge — to defend the judge facing the impeachment motion.

Fifth, the Trinamul Congress will not vote with the Left and the BJP, come what may. The three party MPs were not present in the House. ( )

Justice Sen, who returned to Calcutta this evening, said: “I am extremely disappointed.” His lawyer Subhash Bhattacharya said “if allowed, my client will defend himself in the Lok Sabha”. The Lower House is expected to take up the issue next week.

Glare on judges

BJP’s Arun Jaitley and CPM’s Sitaram Yechury demanded that the executive needs to have a bigger role in judges’ appointment. They were also critical of the judiciary crossing the Lakshman Rekha of separation of powers and encroaching into the spheres of the legislature and the executive.

Jaitley focused on the appointment of judges.

Referring to Justice Sen of Calcutta High Court, Jaitley said the bigger question was “how come such persons get to be appointed?”

He said the best in the country were not willing to be judges and the process of appointing of judges needed to be revisited. Jaitley and other members suggested a national judicial commission, which will include judges, representatives of the executive and eminent citizens, to pick judges.

The present mechanism, where judges are chosen by a collegium, “is also a system of sharing the spoils. When the high courts recommend, members of the collegium share the spoils. This is an impression which close observers have”, the MP, who is also a lawyer, said.

He said Parliament must “seriously consider this larger issue of almost every retiring judge, barring a few honourable exceptions, holding a belief that he is entitled to a job after retirement. Jobs have been provided in certain statutes; they are created by certain judicial orders. Therefore, search for a job on the eve of retirement begins, as a result of which there is a serious doubt which is raised that retirement-eve judgments at times get influenced by the desire to get a job after retirement”.

Ram Jethmalani, another lawyer, said judges who allowed Sen to pay back the money were practising “some kind of trade unionism to save their brother judges, have saved him from being prosecuted and punished for a serious offence.”

Gotcha!

Jaitley — and several other members — showed that they did their homework and came to the House after research.

Jaitley termed yesterday’s speech by Sen, which drew widespread admiration, as “a very persuasive presentation”.

Then the BJP leader added that it was only yesterday night during a closer reading of an inquiry committee report that he found some damning information.

Sen had yesterday said that the inquiry committee had foisted a bank account belonging to another Soumitra Sen on him and victimised him. “When all of us heard this, we were actually surprised that how the committee could commit such a patent error on the face of it,” Jaitley said.

The BJP leader then said Justice Sen himself had, through his mother, given the account number of the other Sen, an employee of a food company, and never corrected this. The inquiry committee found out from the bank that Justice Sen passed off the other Sen’s account as his account in the pleadings so that a perception can be created that he didn’t withdraw money from the account.

“You passed off a false account as your account. When the bank was called, they detected this fraud and the committee has, therefore, given a finding against you,” Jaitley said, referring to Sen.

The lone voice

BSP’s Satish Chandra Mishra was the lone dissenting voice. Mishra injected some of his personal history into the debate, suggesting that Jaitley, as the law minister in 2003, may have had a role in the BSP leader’s failure to be appointed as a judge. Mishra alleged that a former chief minister who later became a member of the House but whose term has expired now had a role to play.

“The day I took oath, I said, ‘Because of you I am here’. Today, I get this opportunity to see whether a high court judge should be impeached or not. This is the irony of fate. Therefore, to say that the appointment of the judges is purely by the judges, Sir, so far as I am concerned, I do not agree to that because I personally know these facts for that purpose,” said Mishra.

Yechury then quipped: “We are glad that you are here with us now.”

Mishra disagreed with the allegation that Sen was guilty of misappropriation of funds. He said Sen can only be accused of diversion of funds, which he later paid back.

Mishra’s comments sent the legal eagles in the House into a tizzy. Jaitley got up from his seat with some papers and walked up to show them to Jethmalani, who nodded in agreement to whatever Jaitley asked him. Minister Ashwini Kumar, also a Supreme Court advocate, gesticulated to Jaitley and walked up to sit with him for a minute as Mishra spoke.

Jaitely had the last word. “We are glad Mr Mishra did not become a judge,” he said when the BSP leader finished his speech.

Ram’s rage

But it was Jethmalani’s speech that appeared to have convinced many in the House. Jethmalani said he would call “him (Sen) respondent. I refuse to call him ‘learned judge’ as some people have called him.”

Jethmalani added that Sen could have been imprisoned under Section 409 of the IPC. Jethmalani said Sen created circumstances so that he is impeached. Otherwise, he would have faced the ignominy of being in jail under Section 409.

“This House will be committing a hara-kiri of its judicial functions, if you don’t rise to the occasion and see that not only this judge goes, but other judges who similarly misbehave do not occupy judicial offices for a day longer,” he said.

In the visitors’ gallery was a delegation of Pakistani MPs, who sat listening in rapt attention.

Eloquence myth

Jethmalani took a dig at Sen’s eloquence. “Sir, there was a reference to his eloquence. Eloquence is, doubtless, a quality which people should possess. But, Sir, eloquence has nothing to do with moral sense; eloquence has nothing to do with the quickened conscience. Eloquence is often the property of the biggest cheats and charlatans. After all, unless you know this glib-talking art, you will not be able to cheat people and it is not a matter of surprise that today the glib talkers are at the top of the world and people who can’t speak are not. This gentleman gave a demonstration of his eloquent deception.”

Sita and Ram

Summing up the debate, Yechury commended Jethmalani for taking up subjects which made his job easier. “I must thank Shri Ram Jethmalani; I must dare say — Sir, I do not want to use this — but who else will come to the defence of Sita-Ram but Ram?”

BJP’s S.S. Ahluwalia pestered Yechury to complete his speech, saying the members should be mindful of the Muslim members, including chairman M. Hamid Ansari and deputy chairman K. Rehman Khan, who were fasting and finish voting by 6.40pm to enable them to break their fast.

Ansari then asked for the vote.