Keep PM, higher judiciary out of Lokpal: ex-CJI
Karan Thapar: With the Lokpal issue continuing to dominate the news, we present the views of one India‘s greatest jurists and a long time advocate in judicial accountability former chief justice of India Jagdish Sharan Verma. Justice Verma, let me start with the obvious question. As a former chief justice of India, should the higher judiciary be brought under the ambit of the Lokpal or would that be a mistake?
JS Verma: That would be a mistake.
Karan Thapar: Why would it be a mistake?
Karan Thapar: Explain to me why you believe bringing the judiciary under the Lokpal would breach the basic structure of the constitution?
JS Verma: Judicial review is a basic feature, part of the basic structure for which an independent judiciary is essential and the Constitution treats the higher judiciary separately, rather the whole of it. Article 50 separates, rather mandates separation of judiciary from executive. The subordinate judiciary is also subdued to control only of the higher judiciary. Article 235 and Article 124, sub article 5, provides for a separate law to be enacted for dealing with proven misbehaviour of the High Court and Supreme Court judges.
Karan Thapar: So what you’re saying is that if the judiciary were brought under the ambit of the Lokpal, judicial review would be affected and undermined?
JS Verma: Certainly. It would be.
Karan Thapar: And if judicial review is undermined, would the independence of the judiciary also be adversely affected?
JS Verma: That is directly connected with it. The judiciary under the Constitution is the custodian of the rule of law which is the bedrock of democracy. So ultimately the democratic structure would be affected.
Karan Thapar: And if the independence of the judiciary is affected, then does that mean that the separation of powers which is intrinsic to our Constitution would also be damaged?
JS Verma: Directly, which is actually expressly mandated separation of powers in Article 50.
Karan Thapar: So are you absolutely sure that what you describe is a cascading damaging effect and an adverse effect on the constitution would follow immediately if the judiciary is brought under the Lokpal, you’re absolutely sure of that?
JS Verma: I’m absolutely sure of that.
Karan Thapar: So at all costs you’re saying the judiciary must not come under the Lokpal?
JS Verma: Certainly not under that. It must be under a law enacted under Article 124(5), which not only me, but the judiciary has also been advocating for long.
Karan Thapar: Now I’ll come to that in a moment’s time. Let me put to you a second and different concern some people have if the judiciary were to be brought under the Lokpal. They say it would result in what they call, a circularity of accountability. On the one hand, the Lokpal has the powers to investigate charges, on the other hand, the same judges have the power to question decisions on the behaviour of the Lokpal. Is that circularity desirable or should it be avoided at all costs?
JS Verma: Actually, it must be avoided at all costs because I may know, as a fact from sitting judges, they are very uncomfortable about it and to put it bluntly, if I were in that position today, and I was offered a judgeship, I would without hesitation say no. You need very competent or the best amongst the members to be judges in order to ensure good justice delivery system.
Karan Thapar: Are you also therefore suggesting that this whole debate about bringing the judiciary on the Lokpal, is worrying sitting judges?
JS Verma: Yes it is, and not only that, as it is, it is becoming difficult to attract the best from the bar and it will make it more difficult.
Karan Thapar: So if the judiciary would have come under Lokpal, it would deter good people joining the bar?
JS Verma: Certainly, and laws’ delays is also connected with it. You have one competent person. He does the work of two-three persons.
Karan Thapar: So a second effect of bringing the judiciary on the Lokpal would be that you would have even greater arrears of justice?
JS Verma: Certainly, laws delays would mount.
Karan Thapar: Now, you’re a great advocate of judicial accountability, but you firmly believe that this should happen by way of a separate judicial accountability bill. Anna Hazare‘s team points to several infirmities in the present judicial accountability bill which is before Parliament. To begin with they say that bill only talks about misbehaviour and misconduct which at best is an indirect and tangential way of covering corruption.
JS Verma: Well, it is too naive to say that misbehaviour does not cover corruption. Actually any improper behaviour is misbehaviour and corruption is the worst form of improper behaviour. As a matter of fact there examples abounding. Dinakaran is being proceeded against now, that’s for corruption. Earlier V Ramaswamy was proceeded against, for corruption under this very provision.
Karan Thapar: So the argument that the judicial accountability bill talks about misbehaviour, misconduct and not corruption and therefore it’s weaker than the Lokpal, is an argument you dismiss altogether?
JS Verma: Actually, it is too simplistic and too naïve, and the word misbehaviour has been deliberately used because it has a very wide connotation.
Karan Thapar: In fact in a sense it’s wider than corruption?
JS Verma: Of course, corruption is only a part of it.
Karan Thapar: Now a second infirmity that Anna Hazare’s team points to, in the judicial accountability bill, is the mechanism that gives sanctions for a judge to be investigated. They say under the bill the sanction is given by the accused judge’s colleagues and friends sitting on the same bench as him, and they may be prone to protect him. They say in comparison, under the Lokpal, the sanction is given by an independent 7-man bench which has no connection to the accused judge and, therefore, will be impartial.
JS Verma: The experience so far shows that this is not a valid argument, because every time a judge has been proceeded against, whether it was Ramaswamy or Dinakaran, it is the judiciary which has moved it and I know from personal experience the number of judges I proceeded against. It was the political executive which let them off. Not only that, take an obvious example, lawyers are disciplined by the Bar council of India that is under lawyers themselves. Why can’t judges be trusted, and ultimately you have any mechanism, it would be a subject to jurisdiction of Supreme Court.
Karan Thapar: Prashant Bhushan, I imagine would respond to what you said by pointing out that there have been innumerable instances of allegations against judges, but on very few occasions has the Chief Justice of India actually given permission for an FIR. He says that if this matter were to be handled by the Lokpal the number of instances where permission to lodge FIRs would increase substantially.
JS Verma: For obvious reasons he doesn’t know all the facts. I know it from within and I know from personal experience even about myself, that the number of judges I’ve proceeded against, I offered to give consent or permission to record FIR, the political executive didn’t accept it.
Karan Thapar: Now, you’re, therefore, saying to me despite all the arguments that the Anna Hazare team has put, you remain clear in your mind that the higher judiciary must not come under the Lokpal?
JS Verma: I’m very sure about it and that is based on my experience from inside for about 26 years.
Karan Thapar: Let’s then come to two other issues that have been in the news. First, should the Prime Minister come under the ambit of the Lokpal?
JS Verma: I don’t think so. The Parliamentary democracy that we have adopted as the system, there the Prime Minister should be accountable only through Parliament.
Karan Thapar: What about making the Prime Minister accountable to the Lokpal but with certain exclusions such as national security or defence?
JS Verma: As a matter of fact, so far as the ordinary law is concerned, that applies to the Prime Minister in any case for offences under the general law. But then so long as he retains the majority in the House of people, he is bound to remain the Prime Minister.
Karan Thapar: In fact Prashant Bhushan and Anna Hazare’s team might turn the argument you’ve just given me on its head by pointing out that if the Prime Minister can be covered by the ordinary law, if he can be covered by the Prevention of Corruption Act, why shouldn’t he be covered by the Lokpal?
JS Verma: The simple answer is that if he is covered in this respect by the ordinary law, you don’t need a Lokpal to cover him on those things, and for the other things, you can’t have a lame duck Prime Minister, because there’s no provision for President’s rule at the Centre.
Karan Thapar: Okay, I understand the point you’re making, others may disagree with it, what about then MPs, specifically in terms of what they do or say, their speeches or their voting in Parliament, if the shadow of corruption falls over those activities, should that come under the Lokpal?
JS Verma: So far as I am concerned I’m clear that the Tiananmen bribery Supreme Court judgement needs to be overruled, that’s absolutely wrong. But then so far Article 105 relating to Parliament and 194 relating to state legislatures are concerned, they clearly provide for privileges to be codified, and so far as their conduct inside the House is concerned, that is subject to provision and, therefore, that should not have any outside body. Even the judiciary’s intervention is limited in that.
Karan Thapar: So in fact Article 105 with respect to Parliament to take that as an example, grants immunity to what MPs do with in the House and unless you can change the Constitution you cannot bring that under the ambit of the Lokpal, but what you’re also saying at the same time is what’s more important is to codify the privileges and spell them out in specific detail, as that would have a constraining effect and a good effect on the behaviour of MPs?
JS Verma: Certainly.
Karan Thapar: In which case, let me end this section by saying this to you. Anna Hazare has repeatedly said that if his entire proposal, all his proposals in there in entirety are not accepted by the government, he will relaunch his fast-unto-death on August 16. Do you believe that fasting-unto-death is a sensible way of negotiating something as complex and constitutionally sensitive as the Lokpal.
JS Verma: I think it is undemocratic, because ultimately the law has to be made by Parliament. Everyone in democracy has the right to have his voice heard, considered and by the deciding authority, it must consider and then decide.
Karan Thapar: But a fast-unto-death is undemocratic?
JS Verma: Yes, it’s undemocratic.
Karan Thapar: Justice Verma, let’s come to how judges are chosen. In 1993, you wrote the Supreme Court judgement, which gave the primary role to the judiciary itself. Today you believe that task needs to be assigned to a national judicial commission. Is that because the wrong sort of people have been elevated to judiciary.
JS Verma: That impression and it’s not unreasonable and that is because the judgement as I understand and I would like to think has not been properly implemented and the errors which have occurred are because of improper working.
Karan Thapar: And the greatest error that has occurred is that thw rong sort of person has either been elevated or made in to a Chief Justice?
JS Verma: Correct.
Karan Thapar: Now you in fact have a striking example of how the wrong sort of person gets elevated. It starts in 1997 when you were Chief Justice of India and you recommended the elevation of a High Court judge to become the Chief Justice of a state High Court. What happened thereafter?
JS Verma: Well, the Prime Minister rang me up and said he’ll clear it, because it has come from me, but he had disturbing reports about his integrity. I said Prime Minister don’t clear it, send it back to me, I withdrew the recommendation and also told two of my colleagues in the Supreme Court who had recommended his appointment that this is not the thing to be done and I also rang up that particular judge himself and told him I’m withdrawing your recommendation.
Karan Thapar: So the most important thing is that you told that judge himself and you also told your colleagues in the Supreme Court who had recommended this gentleman that this was the reason that you were withdrawing your recommendation?
JS Verma: Because my judgement said that antecedents are best known to political executives.
Karan Thapar: And the reason why antecedents are best known to political executives is because they have the means and the mechanisms to keep a check on a man’s integrity, judges themselves don’t?
JS Verma: Correct.
Karan Thapar: A few months or a few years after you demitted office, one of your successors as Chief Justice of India who knew the full story to whom you had explained the reasons why you were withdrawing the recommendation of the concerned judge disregarded everything and went on to promote him to Chief Justice. Is that right?
JS Verma: Unfortunately yes.
Karan Thapar: So clearly a man whose integrity was under question, whose recommendation you had knowingly withdrawn, was equally knowingly and deliberately promoted by one of your successors. Was the Chief Justice who promoted this gentleman Justice Anand and was the gentleman himself Ashok Agarwal?
JS Verma: Well, let us not take names.
Karan Thapar: But I noticed you’re not denying it. Let me put this to you. Was this a one off, isolated solitary instance or are there several other instances where inappropriate people have been elevated to the judiciary?
JS Verma: Well, some people who are not considered suitable in my time and I used to consult five including those who succeeded me thereafter, a few of them were appointed soon after I had retired.
Karan Thapar: So there are several instances of people who were not considered suitable in your time, who were promoted by your successors and once again your successors were aware that these were unsuitable people.
JS Verma: No no, for the Supreme Court they were all involved in the decision.
Karan Thapar: So clearly there were successors who disregarded the reasons you had for not promoting and chose deliberately to promote people who were deemed inappropriate and unsuitable?
JS Verma: You don’t want me to answer that specifically.
Karan Thapar: Once again I’m taking that as a yes and your smile says it all. If a national judicial commission existed, can you be absolutely sure such mal practices wouldn’t continue to happen?
JS Verma: Well, that would act as a check, no doubt, and I think the time has come when more checks and balances are required and the best thing is transparency – everything in writing and all that being in public domain so that that accesses internal check.
Karan Thapar: A moment ago, in answer to a different question, you mentioned how when you were Chief Justice you had given permission for an FIR to be lodged, but the executive of the day refused. Let me ask if I have got the story right. You are referring to an instance that happened in 1997-1998 when you were Chief Justice. The campaign for judicial accountability had presented a petition calling for the impeachment of Justice Punchhi, in the end Justice Punchhi succeeded US Chief Justice of India, but the truth is that you were prepared to grant permission for an FIR to investigate the allegations against Justice Punchhi, but the Prime Minister of the day Inder Gujral refused to accept.
JS Verma: Well, that’s what he clearly said. And also the president, who did not say it directly, he said it through the Prime Minister. That was all I could do.
Karan Thapar: But the important thing is that as Chief Justice of India you were prepared for an FIR, you were prepared to give permission for an FIR to investigate the allegations against Punchhi.
JS Verma: Because the allegation if proved were serious and therefore they required to be investigated, so that one could know whether they were true or not.
Karan Thapar: This also means that Justice Punchhi was elevated to Chief Justice even though he faced what you call serious allegations that should have been investigated?
JS Verma: These are the facts.
Karan Thapar: If a national judicial commission had existed at that time, would it have investigated the allegations against Justice Punchhi?
JS Verma: It is like this. I did whatever power I had at that time. I didn’t have anything more than that. Even in the letter which I wrote I mentioned that.and, therefore, any mechanism which could be as a matter of fact persuaded to make an enquiry, I would have done that.
Karan Thapar: So you did at that time what you could under the powers that you had, you didn’t have powers to go further, but if a national judicial commission had existed, then it would have had the powers to investigate those allegations, am I right in that?
JS Verma: Because then the Prime Minister alone would not have decided.
Karan Thapar: Quite right. The national judicial commission would have decided and it would have automatically investigated. And, therefore, it also means that if an investigation had been carried out, it’s possible not necessary, but possible that Justice Punchhi might never have become Chief Justice.
JS Verma: Well, that would depend on the outcome of the investigation because you see, material not being produced, it not being investigated, I can’t say that.
Karan Thapar: But then the doubts would have been removed, one way or the other.
JS Verma: Yes, yes of course, and in national judicial commission I would have been there as the Chief Justice of India, I could not have just offered it to the Prime Minister and leave it there, I would have persuaded them.
Karan Thapar: One last question, you’re not just a former chief justice of India, you’re also a former chairman of the National Human Rights Commission. One of your successors, Chief Justice KG Balakrishnan today faces serious allegations and they are indeed serious allegations amounting to corruption. Yet he refuses to resign. Is it okay for him to continue in office while facing these allegations or should he step aside?
JS Verma: I have said it long back and I have no hesitation repeating. He should have demitted long back and if he doesn’t do it voluntarily, the government should persuade him to do that, otherwise, proceed to do whatever can be done to see that he demits office.
Karan Thapar: But this is a matter of urgency as it affects the good name of the NHRC?
JS Verma: Not only that, it affects internationally. NHRC actually faced flak recently when there was a threat to downgrade its status, whereas earlier, I remember in our time, Mary Robinson used to say please advise others and that’s what I’m doing.
Karan Thapar: So the good name and standing of India requires that urgent action be taken and Justice Balakrishnan be persuaded to step down?
JS Verma: Absolutely. If he doesn’t do it himself.
Karan Thapar: Justice Verma, a pleasure speaking to you.
JS Verma: Thank You.
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