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The Supreme Court on Thursday termed as a "serious issue" a plea seeking initiation of removal process of former Chief Justice of India K G Balakrishnan from the post of National Human Rights Commission chairman for his alleged "misbehaviour" and purchase of benami properties.
"It is a serious issue," a bench comprising justices B S Chauhan and S A Bobde said while deciding to take a cautious approach in proceeding with the plea in the absence of a clear settled legal position on the subject and added it has to hear the parties before taking any decision.
"We don't want to decide in a hurry," the bench said after deliberating for a while under what circumstances reference can be made for initiation of removal process of NHRC chief for his alleged misconduct and misbehaviour.
It said there was a need to examine "whether the proved misbehaviour has to be as a CJI or NHRC chief".
"We are in a dual role and as an inquiry officer can we ask government for reference," the bench observed and decided to give a detail hearing on the matter on October 30.
At the outset, the bench asked "can the alleged misconduct or misbehaviour as the judge be the ground for removal of NHRC chief".
Solicitor General Mohan Parasaran said "this office (NHRC Chief) is not the elongation of the office of judge and the nature and duty as NHRC chief is totally different".
He said the issue has been gone through by the Ministry of Law and no evidence of misconduct has been found against him as NHRC chief.
However, advocate Prashant Bhushan, appearing for the NGO, Common Cause, which has filed a PIL against Balakrishnan, said the probe has to be initiated by the Supreme Court and the Centre is giving a "laughable interpretation".
He said when facts came to light, Balakrishnan was sitting as a chief of the NHRC and "NHRC chief can only be a former CJI".
Bhushan said Balakrishnan as the then CJI had given the recommendation for the initiation of impeachment proceeding against the former Calcutta high court judge Soumitra Sen for his alleged misconduct and misbehaviour which he had committed before becoming the judge.
He said the impeachment procedure for the judge and NHRC chief is almost the same.
The Centre in its affidavit had said an income tax probe into the allegations against Balakrishnan and his relatives of having amassed disproportionate assets during his tenure as CJI has unearthed no incriminating evidence.
The government has also said that Balakrishnan's conduct during his tenure as CJI cannot be ground for his removal from post of chairman, National Human Rights Commission under the Protection of Human Rights Act, as its provisions cannot be invoked "unless there is proved misbehaviour and mere allegations is insufficient to make a reference to this court".
Referring to an April 2012 supplementary status note of Finance Ministry and Central Board of Direct Taxes on the investigation into the allegations against Balakrishnan and his relatives, the Ministry of Home Affairs' said "on the basis of evidence collected during the course of inquiries it could not be established that the properties were held benami on behalf of Respondent 2 (Balakrishnan)".
"Despite there being no allegations regarding professional receipts, they were nevertheless examined and it was found there was no material to link such payments to any cases pending in the concerned court," the MHA affidavit also said referring to the note.
The ministry has also said that Balakrishnan's case is different from that of Justice Soumitra Sen as "allegations against Justice Sen pertained to the period when he was an advocate and the misconduct had continued while he was a judge.
"The case at hand cannot be compared to that of Justice Sen's as Respondent 2 (Balakrishnan) is not holding a judicial office."
Justice Soumitra Sen of the Calcutta High Court had resigned in September 2011 just days before his impeachment motion was to be taken up in the Lok Sabha after he was found guilty of misappropriating Rs 33.23 lakh in a 1983 case.
The Rajya Sabha had already overwhelmingly approved his impeachment motion.
The affidavit was filed in response to a PIL filed by NGO
Common Cause seeking initiation of removal process of former Justice Balakrishnan from the post of NHRC Chairman for his alleged "misbehaviour" and purchase of benami properties.
The MHA affidavit also referred to the opinion given by the Law Ministry, which has said that "functions of Chairman, National Human Rights Commission cannot be said to be an elongation of the judicial functions which the Respondent 2 discharged in this court as the Chief Justice of India".
The MHA also submitted that "proved misbehaviour", which is a ground for removal of the NHRC Chairman, should relate to conduct in current office and not a previous one.