Warding Off The Eye

MEDIA VS SUPREME COURT

MEDIA VS SUPREME COURT

The judiciary and Parliament seem to think they could do with less coverage
 The Problem Of Too Much Attention
  1. A PIL in Feb alleged that CJI Kapadia had a conflict of interest in the Vodafone tax case. It was dismissed; a penalty was imposed.
  2. Advocate Harish Salve says he was misquoted in the Vodafone matter. Eligibility criterion spelt out for court reporters.
  3. In Mar, CJI says reports on the disproportionate assets of ex-CJI K.G. Balakrishnan are upsetting
  4. SC hurt by reports of a judge listing her daughters in ‘liabilities’
  5. Advocate Fali Nariman says a confidential exchange between his client Sahara and SEBI was leaked on TV. CJI directs parties to make submission in the matter.
  6. Court expresses concern over how the media reported on events surrounding the murder of Arushi Talwar and on her personal life

***

Over the last couple of days, two pillars of democracy have decided that the media must be kept on a leash. First, the Lok Sabha secretariat declared that the media would not be allowed in the vicinity of parliamentary standing and joint committee meetings. Reporters usually hang about for informal briefings from MP acquaintances—it’s the life-breath of in-depth coverage of Parliament. Media professionals wonder if the unprecedented order is timed to prevent reporting on the three defence chiefs’ appearance before a parliamentary committee, slated for April 20. Second, the Allahabad High Court prohibited the media from writing or reporting further on the sensational news of troop movements towards Delhi on Jan 16-17. The Union i&b ministry followed up with an advisory seeking strict adherence to the court order. The two restrictions come even as the Supreme Court is mulling guidelines for law reporters covering it.

So, is this the system recoiling at all those big news stories of scams and criminal investigations that have come out recently? Media professionals feel these ‘guidelines’ would end up stifling them. The bigger fear is that, when institutions like the Supreme Court and the Lok Sabha start writing rulebooks for the media, they might prompt others—say the bureaucracy and the police—to do so too. The cascading effect could shrink the space of reporting in the same proportion as RTI added to it.

It was in the backdrop of an information explosion triggered by television channels, where opinions were sought and decisions arrived at swiftly, that the Law Commission finalised its 2006 report, ‘Trial by Media’, framing guidelines for reporting on criminal proceedings in court. The report makes a case for not covering a trial till it is concluded. It is learnt the Centre is in active consultation with the states on the commission’s report.

As the five-judge constitution bench under the Chief Justice of India, S.H. Kapadia, engages in a threadbare discussion on the media with advocates of freedom of the press and others, it is perhaps time to ask, as indeed the court is doing, whether guidelines regulating the media are required at all. In fact, is there any reason to suppose that media coverage has led to miscarriage of justice. And have existing guidelines failed? Linked to both questions is the public’s right to know and be informed.

Already, there are quite a few guidelines to begin with. There’s the Press Council Act of 1979, though its powers could be debated. Presided over by a retired judge and with journalists and newspapers’ representatives on the board, the council has the power to censure, warn and admonish the press if it fails to adhere to the guidelines. Its present head, Justice Markandeya Katju, has called the Allahabad High Court’s gag order “not correct” and said that “the media has a fundamental right to make such a publication, as it did not endanger national security”.

Then, there’s the News Broadcasting Authority of India (NBA), a self-regulatory body of broadcasters with academics, eminent persons and a former CJI on its rolls. It has a detailed programme code, advocates voluntary adherence and imposes penalties. After the 28/11 attack on Mumbai, it had drawn up rules for reportage by the electronic media.

In his capacity as chairperson of NBA, which is a party to the SC’s deliberations guidelines for the media, former CJI J.S. Verma says, “I feel that, as there are already guidelines drawn up by the channels themselves, the bench in my view could suggest modifications if it so wished. In fact, if the judiciary says compliance with existing guidelines is desirable, that itself will have the desired effect.” Verma—who is often openly critical of media reports—thinks peer pressure works better than imposed guidelines.

Other senior lawyers hold the view that the court has no power to make laws. Former SC judge Justice V.R. Krishna Iyer calls the SC’s attempt to regulate the media a case of judicial overreach. “It’s Parliament that has the right to legislate, not the court.”

Though the chief justice of India has repeatedly clarified that the aim is to regulate, not control, these recent exercises are seen as part of an overall process to control a media that is seen as increasingly critical and combative. The judiciary and the media, which appeared to be working in tandem at one point, now appear to have fallen out.

Does the public have a right to know about how justice is delivered? And if it does, how will that happen if reporters are not permitted to report? Such a move would also run against the open court proceedings our judiciary has adopted till now. There are many who suggest that instead of a broad arc of guidelines, what is required is a case-to-case examination. If an error takes place due to the media, there are adequate grievance redressal structures within the courts in the form of contempt and defamation laws. Moreover, journalists enjoys no special immunities or privileges by law.

Says Kumar Ketkar, editor of Divya Bhaskar, “I am quite critical of the media, but I feel the Supreme Court is overstepping its brief in wanting to frame guidelines for court reporting as the move creates an impression that the court alone is the upholder of integrity, sovereignty and the national interest. This is unfortunate. It would also appear that court and the media are in direct confrontation with each other.”

Adds Arnab Goswami, head of Time Now, “If everything now becomes a matter of litigation, there will be nothing to report on. What will we report on?”

ANURADHA RAMAN IN THE OUTLOOK

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The Lokpal and the CBI

JAN LOKPAL BILL

JAN LOKPAL BILL

R K RAGHAVAN IN THE HINDU

The ushering in of a Lokpal should in no way dilute the CBI’s legal authority or operational effectiveness.

It is a happy turn of events that there is, at last, a kind of truce between the Central government and the Anna Hazare Team on the Lokpal issue. Both sides have displayed a measure of maturity that augurs well for the future of public life in India. The stage is now set for some animated but objective discussion of the law that will concretise the idea of a strong ombudsman. It is not enough for the two sides to say that they are for a credible Lokpal. They need to go the extra length to accommodate each other’s sensitivities. Otherwise things will be back to square one. This is why a lot of importance should be attached to the meeting of the Parliamentary Standing Committee scheduled in the next few days.

The Anna Team’s focus is rightly on the status of the Central Bureau of Investigation (CBI) in the future scheme of things. With all its faults — some real and many imaginary — the CBI is still the best bet to strike at the venality that marks public life in India.

To say that politicians alone are guilty of corruption, an impression given by the Anna Team, is greatly skewed. Civil service misdeeds are equally enormous and cannot be ignored. Take, for instance, the recent arrest of a senior Income Tax Department official who allegedly demanded a sum of Rs.50 lakh to overlook the suppression of unaccounted income by a company. Instances are legion of top officials of enforcement agencies asking for a bribe without any sense of shame or fear. The magnitude of corruption in the Central government departments is mind-boggling, and this is why we first need an effective anti-graft machinery at the Centre, rather than in the States. The corruption in the States could be tackled subsequently. If the Lokpal is unable to cut at the roots of the civil servant-politician nexus in promoting dishonesty, it would have hardly justified its creation.

The ushering in of a Lokpal should in no way dilute the CBI’s legal authority or its operational effectiveness. This should be the starting point for any discussions of the Standing Committee. A former Union Minister, referring to the plea for total autonomy for the CBI from the Executive, asked this writer some time ago as to who exactly the organisation should be answerable to if it wants to be autonomous — particularly when monitoring of all CBI cases by the judiciary was impractical. This query by an otherwise well-meaning public figure summarises the political perspective of the whole issue of the CBI’s autonomy. It reveals the unconcealed desire of the average politician to somehow retain at least a semblance of control over the CBI.

It is generally known that the senior bureaucracy is also not exactly unhappy with the current state of affairs wherein the CBI is under the thumb of the Department of Personnel. Perhaps the most significant move that came in 2003 was the insertion of Section 6A in the Delhi Special Police Establishment (DSPE) Act, 1946, making it mandatory for the CBI to get prior government permission before it can even proceed with a preliminary enquiry (PE) against an official of and above the rank of Joint Secretary. This was a dubious amendment to the Act, based on the specious ground of saving civil servants from needless harassment by the CBI. But it amounted to deliberate emasculation of an organisation that requires teeth to tackle public servant corruption. The provision has been questioned in judicial forums as violative of the fundamental right of citizens to equality before law. Let us hope that this issue is resolved soon in favour of maintaining the integrity of the public services.

It is against this backdrop that the Anna Team’s demand to bifurcate the CBI, attaching its anti-corruption wing with the proposed Lokpal machinery, should be examined. This is ostensibly in order to remove the organisation from the clutches of the Executive. The rationale is unexceptionable. The practicality of the proposed arrangement is, however, highly debatable.

The CBI does not operate with any watertight compartmentalisation of its numerous wings. No doubt there is a distinct Anti-Corruption Wing functioning at its headquarters. In the field units the distinction is, however, blurred. There is a pooling of resources at all levels when a major case, invariably a sensational conventional crime, is investigated by the CBI at the request of a State government or on the orders of a court. This will no longer be possible if a large chunk of the CBI representing the anti-corruption staff is removed and tagged on to the Lokpal. The current top brass of the organisation are reportedly opposed to such an arrangement, which would deny them the substantial manpower needed for non-anti-corruption work. The CBI’s resources are already quite slender, making it difficult to cope with the nearly 1,000 cases registered by it each year and about 7,000 cases that are on trial.

Following the Vineet Narain judgment (1997) by the Supreme Court, the superintendence of the CBI’s anti-corruption work is with the Central Vigilance Commission (CVC). This is a nominal arrangement which has worked reasonably well, because we have had some non-interfering and mature Central Vigilance Commissioners, and an equally responsible and self-effacing CBI leadership. Under an aggressive and egoistic CVC this arrangement could have become untenable. If, however, you want to disturb this stable state of affairs with a view to yielding to the demand of the Anna Team, the whole process of transition will have to be carefully conceived and worked out.

As one who has headed the CBI, I am totally against any dismemberment of the organisation. That would cause more harm than good to the objective of rooting out corruption. If the Lokpal becomes a reality, the most sensible thing to do would be to transfer the existing authority of superintendence of the CBI from the CVC to the Lokpal. Any other arrangement would result in the creation of two separate investigating agencies, namely, the CBI, and the small unit envisaged for the Lokpal. That would lead to confusion and a clash of functions. Along with such empowerment, the Lokpal could be conferred the authority (that currently vests with the government) to sanction the prosecution of public servants. This can be done by suitably amending Section 197 of the Criminal Procedure Code, 1973 and Section 19 of the Prevention of Corruption Act, 1988. The power enjoyed by the government under Sections 377 and 378 of the CrPC to deny or accord permission to the CBI to go on appeal or prefer a revision petition against the orders of lower courts could also be vested in the Lokpal. It should be remembered that we have been witness to totally political decisions in such matters. Finally, the entire budget allocation for the CBI could be placed at the hands of the Lokpal, so that the CBI enjoys freedom from any tendentious holding up by government of sanctions of money required for its day-to-day running and implementing its long-term projects.

All these suggested moves may be viewed as being too drastic. But, then, without them the CBI will remain tied to the apron strings of the Executive. The former Chief Justice of India, J.S. Verma, must be a disappointed man. His bold judgment in the Vineet Narain case was aimed at insulating the CBI totally from political caprice. If, however, in the public perception this has not materialised, both the organisation’s leadership and the executive will have to bear the cross.

The opportunity that is currently available to improve the image of the CBI through a thoughtful fusing of the agency with the Lokpal should not be frittered away. A lot of magnanimity on the part of the current Executive is called for. At the same time, the role of the media and the citizenry at large in bringing enough pressure for a reform of the system can hardly be overemphasised.

(Dr. R.K. Raghavan is a former director of the Central Bureau of Investigation.)

http://www.thehindu.com/opinion/lead/article2424159.ece

‘Bill says Lokpal should prove he has been a fighter against corruption. Where are those people? In media and civil society?’

SATYANANAD MISHRA CHIEF INFORMATION COMMISSIONER IN WALK THE TALK WITH SHEKHAR GUPTA IN THE INDIAN EXPRESS

In a season when every self-styled warrior against corruption is trying to look for a new weapon to fight it, my guest today is Satyananda Mishra, Chief Information Commissioner—someone who has in his control the strongest of those weapons, the RTI.

Actually when it all began, nobody thought it would be so effective. In a period of five-and-a-half years, it has touched the hearts and minds of people. The number of RTI applications is doubling every year.

As a former bureaucrat, you don’t see merit in what so many of your colleagues say—that RTI has now become a nuisance?

If you are in the government, then you will look at it as a nuisance. When you have to provide certain information, it might be embarrassing. But we must realise it’s very important to have this kind of a law.

But do you think people have learnt to use the RTI?

Quite a few have, but we should not be disappointed at the pace of its progress. No other law would have got such enthusiasm in five-and-a-half years. Around three million people are seeking information every year.

But this has also caught the bad guy’s attention, with so many RTI activists being attacked.

Firstly, anyone who seeks information can’t be called an RTI activist. An RTI activist is someone seeking information for public good. Any good district magistrate or superintendent of police will know who the RTI activists in their area are and they should provide them the necessary cover.

The potential of the RTI is now being realised, people are learning to use it. Yet, the discourse now seems to be completely different—from sledgehammer to machine gun to a canon now to a nuclear weapon.

We have a tendency—both the government and the people—to think that if you have a problem, then a law can solve it. I have seen it in Madhya Pradesh where a dozen laws were made in a year. A Corruption Eradication Act was enacted in the early Eighties, but nothing happened.

You have said that if the Lokpal comes into being, you will have to paratroop Yudhishtir to India in Kalyug.

Yes, I said that. One of the proponents of that Bill is that it will have 15,000 people. Where will you get so many people with unimpeachable integrity, who have shown their resolve for fierce independence, with no track record of even a complaint against them? Where are those people?

Why the Yudhishtir simile?

In the Mahabharata, he was the paragon of all virtues, so the Lokpal under discussion is a person who should have these attributes, only then you will be able to tower over the Supreme Court judges, the Cabinet secretaries, Army Chief, Air Chief, all CAGs, CECs; that’s impractical.

Impractical or impossible?

Both. Having been a secretary in the government of India in charge of some of these agencies, I can tell you that it has been such a difficult thing to get the personnel… getting 11 people may not be so difficult. Even then I think it will be very difficult unless you are going to choose some of the mediapersons who have been campaigning against corruption.

Because one of the attributes of the new Lokpal would be that he should prove that he has been a fierce fighter against corruption. I can’t produce such a certificate. Who in the government will be able to produce a testimonial, because there is a clause that the applicant for the post of Lokpal will have to produce documentary evidence for that.

So no one in the government can produce such evidence?

Only people in media and civil society will be able to do that.

In this complicated country, even Yudhishtir was made to tell a lie and he did it under the divine advice of Lord Krishna. Governance is complicated, you said the law seems to have been drafted by people who don’t know how government functions.

Government decision-making is not simple. There is no black and white; rules are being made, they are being changed from time to time. That means the government is in a dynamic situation, engaging with the realities around and then changing itself. Of course, the government is slow, but nevertheless it changes. So there can’t be a body which is distanced from the talk. The premise is that it should have no linkage with the government; being under the control of the government and being distant from the government are completely different. If you are completely distant from the government, you are totally unaware of what is going on in the government. You can’t appreciate how decisions are being made.

Jayalalithaa now says that Lokpal will be a kind of parallel government.

From the structure of the Bill, as it exists, you will need another Shastri Bhavan or Nirman Bhavan to house the new Lokpal. Because if they have to look into complaints against 42 lakh central government employees, imagine if there are complaints against even 1 per cent of them, that is 42,000 complaints. And they have promised that every single complaint will be looked into. So think how many people will be required to look into that.

Have you seen complaints filed against your colleagues—you were secretary (personnel), DoPT?

Yes, I saw a complaint against one of the secretaries in which the complainant had taken the Delhi telephone directory and collected eight properties bearing the surname of this particular individual, claiming these properties belong to this officer and he has not reported it in the annual property return. So the inquiry began. Currently, the inquiry is done discreetly. Under the proposed Lokpal, the inquiry will be public. The data will be videographed and probably even telecast in the evening. Just imagine what would be the authority of the secretary when everyone in the department will be talking about him that this fellow has eight properties. Maybe at the end of the month you will say the complaint was wrong, but his reputation has been tarnished.

What about the case of this secretary, did you find any substance in the complaint?

No, none. There must be some respect for the system.

In your own interactions, have you found this respect lacking?

Yes. It seems we are dealing with a ‘gone’ case. Every system will have to have a compass. It is a huge government; there are millions of people working within this who are not so bad. And then there is a motivational factor. If you think everyone is corrupt and completely beyond redemption, then why will young people choose civil services? They have many other choices. Anyway, the quality of people joining the services is a matter of worry.

And you think that if this comes in, then simpler people will not want to come?

Yes, this will be one of the factors. When you choose a career, you evaluate the environment in which you will work. No one is saying there should be no inquiry. My personal objection to the architecture of this Bill is not about the intent—the intent is to punish—but the details of this are premised not on a desire to improve things, but on a desire to spite, to smother.

So you certainly don’t want the judiciary and the Army under this?

I don’t know whether the Army or judiciary should be brought under this or not. But whoever is brought under this should be brought under an independent Lokpal with sufficient inbuilt checks and balances. The present Bill structure doesn’t tell me to whom the Lokpal will be answerable.

And you may find one Yudhishtir, how will you find a succession of Yudhishtirs? And eleven of them at one time?

Not just eleven, several thousands of them because the Bill very conveniently defines who a Lokpal is. He is not only these eleven people, but also the thousands of people, including the peons, who will be the Lokpal. It says every employee of the Lokpal will be called a Lokpal and will have his powers. That’s the definition in Section 2 of the Bill.

What about the two other contentious questions? One is whether to put the PM under this mechanism or not?

This is something on which you and I could have extremely divergent opinions. Someone like Justice Verma has argued why he thinks the PM should not be there. He feels that in the kind of system we work, if the PM has a series of complaints pending against him and inquired into in by the Lokpal, even if he is not summoned to their office, it will impact his national and international image. One has to be extremely careful in finally deciding whether authorities such as the PM and CJI should be brought under this or not.

How about the CBI? You were Secretary, DoPT and the CBI came under your control. What’s your take on the CBI being brought under the RTI?

When the RTI was made in 2005, there were 22 organisations which were put in the second schedule, taking them out of the RTI. They were security and intelligence agencies. The DoPT was framing the law. At that time, I don’t know why they didn’t think about this. Why did they take five-and-a-half years to think about the need for bringing the CBI under this?

So are you open-minded or do you prefer that the CBI be brought under this?

We have no problem with the CBI being under the RTI. In the last five years, I can assure you, that the CIC has not passed a single order which has put an obstacle in the right endeavours of the CBI.

Because your predecessor (Wajahat) Habibullah is a strong proponent of the CBI coming under the RTI. Two-and-a-half years ago, he said the RTI is a law whose reach and power is expanding every day. Has something about the law surprised you?

Yes, it has a surprising reach and a surprising way of empowering people. Normally, private banks are outside the RTI. The RBI has issued an advisory to ICICI Bank; somebody went to the RBI and asked for a copy, the RBI said no. The appeal came to us so we decided that the advisory should be given. Then ICICI went to the Bombay High Court and got a stay. The case was sent back to us so we passed an order that we don’t see any reason for changing it. So imagine a citizen doggedly pursuing the might of huge banks. But for this law, who would stand up like this?

Today if you see the discourse, Indian bureaucracy seems to be the root of all evil. Will you defend your profession?

I will and I’m grateful to you for not using the word ‘babu’. I think there is a complete disconnect somewhere and to a great extent, we in the civil services are also responsible for losing the trust and affection of the people. The people must be patient and kind because we are not dealing with foreign civil services, we are dealing with our own country’s civil service. Most of the people who are criticising civil services would have someone from their family in the services.

And your experience is that civil servants are either thieves or are honest?

I completely deny this charge that civil servants are corrupt. Yes, there are some people, but they are there in every walk of life.

In a small minority or in a substantial minority?

In a minority, certainly not the majority. Among the 42 lakh government employees, I don’t think the number of corrupt people will be (more than) 5 per cent or 10 per cent.

So this Lokpal will have one Lokpal for 10 corrupt people.

I can assure you that complaints are received against everybody, good or bad. Since this law proposes that every complaints will be looked into…

So these 15,000 people will become overworked very soon.

Yes, exactly.

You were in the Madhya Pradesh cadre. One of the many interesting things you have done is as the development commissioner for some of the most backward parts of the state, which also had mining. Describe some of the corruption you saw there and what tools did you find there to fight it?

In those days, in the late 70s, when I was in Korba, it had the biggest coal mines in the country—now in Chhattisgarh. Stealing coal from the mines and selling it in the black market was rampant. It was always alleged that some of the coal mine officials were mixed up with these people, you may call them the mafia. From time to time, we conducted raids and cops would detain people.

What methods did you find to empower people, to prevent exploitation because in that may lie some answers to the mining challenge for the future.

I was born in Keonjhar district of Orissa that has the second largest iron ore deposit after Bastar, and high poverty. Suddenly, the mine owners have become so rich and you can see the division in society. Unless something is done quickly and the share of the profit coming out of mines is distributed equitably among people living in the area whether or not they own the land…

What kind of a family do you come from?

I lost my parents when I was two. So my uncle, who was a teacher in a tribal school, brought me up. I began my education in a tribal school.

So you have seen a tough life.

Yes, I have seen the entire spectrum.

That’s the tragedy in India. A lot of people who talk about poverty haven’t actually been poor.

Yes. Moving from a place where I would trek 4 km daily until I passed high school to here in Delhi with you.

That is the beauty of this country, from poverty to power of this kind. So many of you in civil service are the salt of the earth and may your tribe increase and may we keep talking as the power of the law over which you preside unfolds in years to come.

Lokpal bill and the Prime Minister

A cropped Manmohan Singh version of File:IBSA-...

Image via Wikipedia

ANIL DIVAN IN THE HINDU

When the basic structure of the Constitution denies the Prime Minister immunity from prosecution, how could it be argued that the office should not be brought under the scrutiny of the Lokpal?

The Indian citizenry is up in arms against corruption at the highest levels of government. Anna Hazare‘s movement has caught the people’s imagination. The former President, A.P.J. Abdul Kalam, has pitched in and called upon the youth to start a mass movement against corruption under the banner “What can I give?” (The Hindu, June 27, 2011).

According to a CRISIL report (The Hindu, June 29, 2011), inflation has caused the Indian public to be squeezed to the extent of Rs. 2.3 lakh crores. According to the Comptroller and Auditor General of India (CAG), the estimate of loss to the exchequer owing to the 2G spectrum scam is Rs. 1.22 lakh crores. That corruption is a disease consuming the body politic is a fear expressed by dignitaries in India over many years. As far back as 1979, Justice V.R. Krishna Iyer observed in a judgment in his inimitable style: “Fearless investigation is a ‘sine qua non’ of exposure of delinquent ‘greats’ and if the investigative agencies tremble to probe or make public the felonies of high office, white-collar offenders in the peaks may be unruffled by the law. An independent investigative agency to be set in motion by any responsible citizen is a desideratum.”

Mark the words: fearless investigation by an independent investigative agency against delinquent ‘greats’. A good Lokpal bill has to be nothing less.

It is in this context that this article addresses the issue of whether the Prime Minister should be brought under the ambit of an Ombudsman (Lokpal) and be subject to its scrutiny. It is important to observe that in most of the Lokpal bills, including the 2010 government draft (except the 1985 version), the Prime Minister is within the ambit of the Lokpal.

The Constitution

Under the Indian Constitution there is no provision to give immunity to the Prime Minister, Chief Ministers or Ministers. Under Article 361, immunity from criminal proceedings is conferred on the President and the Governor (formerly the Rajpramukh) only “during his term of office.”

So what is the principle behind such immunity being given? The line is clearly drawn. Constitutional heads who do not directly exercise executive powers are given immunity as heads of state. Active politicians such as Ministers, who cannot remain aloof from the hurly-burly of electoral and party politics, ethical or unethical, honest or corrupt, are not given any immunity. They are subject to penal laws and criminal liability.

The basic structure of the Constitution clearly denies immunity to the Prime Minister.

Internal Emergency

During the period of the Internal Emergency (1975-77), Indira Gandhi enjoyed dictatorial powers. She detained without trial prominent Opposition leaders and was supported by a captive and rump Parliament.

The Constitution (Fortieth Amendment) Bill was moved in, and passed by, the Rajya Sabha in August 1975 and later it was to go before the Lok Sabha. The Bill was blacked out from the media and hence very few people knew about it. It never became law because it was not moved in the Lok Sabha.

The Bill sought to amend Article 361 by substituting sub-clause (2) thus: “(2) No criminal proceedings whatsoever, against or concerning a person who is or has been the President or the Prime Minister or the Governor of a State, shall lie in any court, or shall be instituted or continued in any court in respect of any act done by him, whether before he entered upon his office or during his term of office as President or Prime Minister or Governor of a State, as the case may be, and no process whatsoever including process for arrest or imprisonment shall issue from any court against such person in respect of any such act.”

The attempt to give life-time immunity from criminal proceedings for acts done during and even prior to assuming office, of the President, the Governor and additionally the Prime Minister, did not materialise.

Foreign jurisdictions

In Japan, Prime Minister Kakuei Tanaka (July 1972 to December 1974) was found guilty of bribery and sentenced. In Israel, Prime Minister Ehud Olmert was indicted in corruption scandals in August 2009. In Italy, Prime Minister Silvio Berlusconi enacted, through a pliant legislature, a law by which he shielded himself from prosecution. The Italian Constitutional Court recently invalidated crucial parts of that law, which may result in his trial being revived.

The following are some of the main arguments against bringing the Prime Minister under the Lokpal’s scrutiny. The first one runs thus: “The simple answer is, if the Prime Minister is covered under ordinary law (the Prevention of Corruption Act), you don’t need him covered under Lokpal.” This is a view that has been attributed to the former Chief Justice of India, J.S. Verma (Hindustan Times, June 27, 2011). Any misconduct by a Prime Minister can be investigated by the Central Bureau of Investigation: this view is that of Chief Minister Jayalalithaa (The Hindu, June 28, 2011). This objection concedes the principle that the Prime Minister is not immune from criminal liability and can be investigated, but argues and assumes that the Prevention of Corruption Act and the CBI present effective existing alternative procedures. Nothing could be farther from the truth and the ground realities.

What is the ground reality? First, the CBI, the premier anti-corruption investigative agency, is under the Department of Personnel and Training, which is controlled by the Prime Minister’s Office (PMO). Secondly, the career prospects of CBI officers and other personnel are dependent on the political executive, and all officers are subject to transfer except the Director. Thus, the investigative arm is controlled by the ‘political suspects’ themselves. Thirdly, the Single Directive, a secret administrative directive that was invalidated by the Supreme Court in the Jain hawala case in 1997 (Vineet Narain v. Union of India) has been legislatively revived. Consequently, under Section 6A of the Delhi Special Police Establishment Act, the CBI is disabled from starting an inquiry or investigation against Joint Secretary or higher level bureaucrats without the Central government’s prior approval. Therefore, the Prevention of Corruption Act is a non-starter against Ministers and high-level bureaucrats who may act in concert. It is imperative that the CBI’s anti-corruption wing be brought under the Lokpal and not under the PMO. This alone would meet the test of an independent and fearless investigative agency as enunciated by Justice Krishna Iyer.

Secondly, it is argued that if the Prime Minister is within its ambit, the Lokpal could be used by foreign powers to destabilise the government. Today, the checks on the executive government are the higher judiciary, which has actively intervened in the 2G spectrum scam and other scams; the CAG, whose reports against the functioning of the telecommunications sector triggered investigations into scams; the Election Commission headed by the Chief Election Commissioner, which conducted elections in West Bengal in the most efficient and orderly fashion. All these authorities could be undermined by a foreign power. Why should the Lokpal alone be the target of a foreign power? Why not the intelligence and defence services? Why not leaks from Cabinet Ministers and their offices — bugged or not?

Thirdly, it is argued that bringing the Prime Minister under the Lokpal’s scrutiny would mean a parallel government being put in place. This objection is disingenuous. Do the Supreme Court and the higher judiciary constitute a parallel government? Is the CAG a parallel government? Is the CEC a parallel government? Is the CBI a parallel government? The answer is clear. These constitute checks and restraints on the political executive and the administration so that public funds are not misappropriated and constitutional democracy and citizen rights are not subverted. The Lokpal will be under the Constitution and subject to judicial review, and it is imperative that the anti-corruption wing of the CBI be brought under the Lokpal. There is no question of any parallel government. The Lokpal will be only a check on the corrupt activities of the Executive. If all checks and balances are to be regarded as the marks of a parallel government and therefore abolished, it will be a recipe for dictatorship.

William Shakespeare wrote: “There is a tide in the affairs of men, which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life is bound in shallows and in miseries.” There is a tide in the affairs of this country and there is a great opportunity to promote good governance through a powerful and independent Ombudsman. India’s economic reforms, for which the Prime Minister deserves approbation, should not be derailed at the altar of scams and corruption. Will his leadership ride on the tide of fortune and take the country forward to greater heights?

(Anil Divan is a Senior Advocate, and president of the Bar Association of India. E-mail: abdsad@airtelmail.in)

http://www.thehindu.com/opinion/lead/article2148073.ece

Justice V.R. Krishna Iyer, former Judge of the Supreme Court, writes in the context of the article by Anil Divan headlined ‘Lokpal bill and the Prime Minister,’ published on July 1:

Lord Acton, the great British jurist, rightly said: “Power tends to corrupt and absolute power corrupts absolutely.” The Prime Minister is the custodian of the considerable state power. He has to be under public scrutiny.

Therefore I have clearly expressed the view that if power is to be subject to public investigation and scrutiny, he has to be within the ambit of the Lokpal Bill and cannot be exempted from it. Likewise, our judiciary is the watchdog of the Executive. People look up to the judges to ensure that the Executive does not misbehave. The judiciary must be accessible to every citizen who has a grievance against the robed brethren. When Parliament resorts to misconduct and violates the Constitution, people appeal to the judges for a remedy. In this view, the judges are sublime and must have control over the Executive and the parliamentary process. Both these instruments are under the Lokpal’s proposed jurisdiction. There is no case of exemption of these authorities. I am sorry that some high Chief Justices have expressed a different view. I disagree. The greatest menace before India today is that the judiciary itself is corrupt and no action is being taken. There must be a militant, active nationwide movement against corruption. A powerful instrument must be set up for this if the confidence of the people is to be preserved.

The judiciary and the Prime Minister shall be under the Lokpal. The Lokpal itself must be of the highest order and should be plural in number. The Prime Minister and the judiciary shall be like Caesar’s wife: above suspicion.

Keep PM, higher judiciary out of Lokpal: ex-CJI

CNN IBN

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?

JS Verma: It will foul with the basic structure of the Constitution.

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.

http://ibnlive.in.com/news/keep-pm-higher-judiciary-out-of-lokpal-excji/162837-3.html

Weighing The Scales

Anuradha Raman in The OUTLOOK

 A caveat: Is the Lokpal the right authority to investigate judges? Legal luminaries think otherwise.

Five Points Of Contention

Pro-Lokpal Bill activists want the higher judiciary to come under the purview of the new law. Jurists think otherwise.

Point: Nowhere in the world is there an ombudsman to whom the entire higher judiciary is made accountable
Counterpoint: The Lokpal Bill must ensure powers to probe corruption charges against SC and HC judges
Independence of the judiciary will be affected, as power to give the nod to act against higher judiciary vests only with CJI

The Bill must provide for a system which is independent of the judiciary to grant permission to register an FIR and launch investigations against a corrupt judge
The Judicial Accountability Bill does have provisions to probe and charge a corrupt judge
The Judicial Accountability Bill only addresses professional misconduct and not corruption
Creates an absurd situation that will become untenable, putting the SC and the Lokpal at loggerheads

Complaints against Lokpal can go to the SC. Those against judges can be taken up by the Lokpal. This willl provide for better checks and balances.
The Lokpal Bill will be challenged in the courts as it affects specific clauses which guard the independence of the judiciary

The Constitution need not be amended to bring the judiciary in the ambit of the Lokpal

Should a judge be subjected to criminal investigation on suspicion of corruption in office? If an ombudsman such as the proposed Lokpal questions his actions, will it amount to lowering the dignity of the judge or the judiciary? Should a judge be immune from the law? These are the chief questions in the debate over whether the judiciary should be made accountable to the Lokpal. Think of it as a special aspect of India’s contentious exploration of a new regulatory possibility, an ombudsman to check corruption in high places, a process stalled in Parliament since the late 1960s.

Despite allegations of corruption against a few judges, courts have by and large managed to retain the sheen of inviolability—and that only partly owes to conventional deference. They are still seen as protectors of the common man and levellers of the high and mighty. Over the last year, they have been hailed for decisions that packed off ministers and MPs to jail, upheld environment laws, championed the cause of the poor and chastised governments for insensitivity towards have-nots. They also came in for criticism, to be sure, for turning a blind eye to the rot in the judiciary itself. What’s galling members of civil society on the Lokpal Bill drafting committee, however, is the stiff resistance from jurists to bringing the higher judiciary—high court and Supreme Court judges—within the ambit of the proposed law. In the five meetings held so far, government nominees on the committee, too, have stymied the efforts of civil society members to include provisos that will make sitting judges accountable. Both groups are battling it out in every conceivable forum in an attempt to influence public opinion.

As of now, if there is an allegation of corruption against a high court or Supreme Court judge, even an fir cannot be registered without permission from the chief justice of India (cji). This stems not from enacted law but from a 1991 judgement of the apex court in the case of Justice K. Veeraswami, which was ostensibly meant to protect the independence of the judiciary and insulate it against pressure from the executive. But legal experts say such permission—if it comes at all—is bound to take time, during which there is every chance for loss of evidence. But has such permission ever been granted? No. Is it likely to happen under the present circumstances? “The very idea of having the cji grant permission for criminal investigation of judges is a farce,” says Prashant Bhushan, a lawyer-activist on the Lokpal committee. “Hence the need to address this in the Lokpal bill.”

The draft bill being discussed proposes to address this problem by requiring that “permission to register an fir against a judge should be granted by a seven-member bench of the Jan Lokpal (the bench may have a majority of judicial members) rather than the cji.” Besides, it says “any complaint against any judge of an HC or SC shall be dealt with only by the office of the chairperson of Lokpal and will be subjected to a preliminary screening which shall determine whether prima facie evidence exists under the Prevention of Corruption Act. In addition to this, no case shall be registered without the approval of a full bench of Lokpal.”

Foremost among those who have reservations about these provisos are former cjis J.S. Verma and M.N. Venkatachaliah: they don’t want judges to be subject to the Lokpal’s scrutiny. Verma says the Judicial Accountability Bill, which he helped initiate and is now pending in Parliament, is the best option. Judges should be accountable, in his opinion, but not to the Lokpal. He says, “Article 50 of the Constitution provides for separation of powers between the executive and the judiciary. The Lokpal falls in the category of the executive. If you don’t have faith in the judiciary, do you think the gods are going to descend and sit in the Lokpal?” His larger argument is that bringing judges under the Lokpal amounts to tampering with the basic structure of the Constitution. “Also,” he asks, “if the Lokpal goes wrong, where will people go? To the courts? Instead, why not strengthen the Judicial Accountability Bill? Article 124 provides for enacting a law for judicial accountability.” Civil society representatives counter that going to the courts in case there are complaints against the Lokpal, or if the Lokpal’s decision is not satisfactory, will ensure enough checks and balances.

This is a circular argument, according to A.P. Shah, former chief justice of Delhi High Court, and makes no sense. He too is for strengthening the Judicial Accountability Bill and keeping judges from the purview of the Lokpal. “The power to remove the Lokpal is with the Supreme Court, and the Lokpal will look into complaints against Supreme Court judges! How can that happen?” he asks. “A judicial accountability law can look into and also govern investigation of allegations of corruption in the judiciary too.”

Another aspect Shah questions is the wisdom of bifurcating wrongdoing in the judiciary—with the Lokpal looking at criminal misconduct only. “Look at P.D. Dinakaran, chief justice of the Sikkim High Court,” he says. “Corruption is one of the many charges—besides judicial misconduct and land-grabbing—levelled against him. Can you say the Lokpal will look only at corruption? How will this operate?”

The objection of Soli Sorabjee, former solicitor-general of India, is based on possibilities of plays and counterplays that will prove counter-productive. “The insistence of civil society members on roping in the judiciary will invite the court’s action. It will be challenged by the courts and an unfortunate regressive result will be major delays in the passage of the bill,” he says. “And if there are weaknesses in the Judicial Accountability Bill, by all means let’s consolidate it.”

This is a view echoed by V.S. Malimath, former chief justice of the Karnataka and Kerala high courts. “Was it not judges who found Ramaswamy, against whom Parliament initiated proceedings for impeachment, guilty? But who acquitted him? Politicians,” he says. “Corruption in the judiciary is a disease and should be treated like one by putting in procedural safeguards.” The question of the Lokpal’s proper turf stems from Article 124 of the Constitution, which makes judges of the Supreme Court totally independent of the executive.

As for getting MPs under the proposed law, there are few takers here too. Some MPs argue, off the record, that the system of checks and balances prevalent now—the ethics committee of Parliament and the privileges committee—have functioned well enough in the recent past. In a signed piece in People’s Democracy, Sitaram Yechury of the CPI(M) writes: “The Common Minimum Programme adopted by the United Front government in 1996 said that a bill to set up the Lokpal will be introduced in the first budget session of the XIth Lok Sabha. The bill will cover the office of the prime minister as well. All MPs will be required by law to declare their assets annually before the Lokpal.” And D. Raja of the CPI acknowledges the importance of making MPs accountable, saying, “The bill will be discussed threadbare by my party, given the various corruption scams that have rocked the government.” By and large, though, MPs are not in favour of being brought under the Lokpal.

Given these complications, the passage of the Lokpal Bill is not going to be easy. It is, after all, Parliament that will have to give its nod to bringing both the prime minister and judges under the Lokpal. But the big question is whether our politicians will unite in voting for a bill that will make them accountable to an external, turf-hungry authority?

VOICES

“Courts will challenge the bill and the result will be a delay in its passage. This will be rather unfortunate.” Soli Sorabjee, Ex-solicitor-general of India

“Wasn’t it judges who found Ramaswami guilty? And who let him off? Politicians. Graft is a disease.” Justice V.S. Malimath, Ex-CJ, Karnataka, Kerala HCs

“The power to remove the Lokpal is with the SC, and the Lokpal will look at complaints against SC judges?” Justice A.P. Shah, Ex-chief Justice of Delhi HC

“The CJI granting permission to probe a judge is a farce. So we need to address this in the Lokpal Bill.” Prashant Bhushan, Lawyer-activist

 http://www.outlookindia.com/article.aspx?272113

Democratic war

Indian Parliament Building Delhi India

Image via Wikipedia

The Lokpal must be an independent body accessible to every citizen on any matter of corruption affecting the purity of public life.

Justice V R Krishna Iyer in THE FRONTLINE

IT is well known that corruption is widely prevalent in India. Time and again, acts of corruption have been brought into the public domain. They violate human rights, undermine the rule of law, distort the development process and disempower the Indian state. While there are laws against corruption in India, there exists a wide gap between the law in the books and the law in practice. Therefore, a comprehensive law providing for forfeiture of illegally acquired property, in India and abroad, of public servants is the need of the hour. The Jan Lokpal should have independence in its functioning. It must have the power to inquire into, decide and forfeit illegally acquired property of public servants, their relatives, associates, name lenders, and so on. For discharging the onerous duties of the Lokpal under the said enactment, that office must be given wide powers, including the power to call even from Swiss banks details of funds deposited by public servants. Power should be conferred on it to attach and confiscate movable and immovable property even before a final decision is taken. There must also be a provision stating that all transfers of illegally acquired property shall be void if such transfer is effected after the issue of notice of forfeiture. The accused public servant should be burdened with the duty to prove that all the assets he possessed are legally acquired wealth.

The Lokpal should be headed by a former judge of the Supreme Court with impeccable integrity. There has to be a provision for appeal to the Supreme Court.

The Lokpal will be an independent body accessible to every citizen on any matter of corruption affecting the purity of public life and will act only according to its chaste conscience. The members of the Lokpal body can act without fear or favour or affection or ill will of anyone in India, be he ever so high. Its jurisdiction will extend to investigate the proceedings of the Prime Minister, the President or other public authority or public body functioning in a manner affecting public interest, public life or work. The Lokpal cannot be changed by the government and can be replaced only by resignation or a unanimous decision of Parliament, Prime Minister and President.

Such a body will be supreme in its operations and its guidance will extend over the executive, legislative and judicative wings of government. The Lokpal and other members of the body will be selected by an independent authority in India and they can be prosecuted or subject to any court’s jurisdiction only on a specific motion for that purpose in Parliament or the State Assemblies and approved by a two-thirds majority of each House. On the other hand, the Lokpal, acting on the basis of a majority, can quash any decision or order of any authority that is found delinquent after a full and fair inquiry.

India has seen many avatars of corruption – the Bofors scandal, the fodder scam, the 2G spectrum allocation scam, the swindle in the Commonwealth Games preparations, and so on. The people of the country strongly believe that toothless pieces of legislation made by legislatures are the reason why corrupt people go scot free. The people also seem to have lost belief in the judicial system, which has been able to bring to justice only a few of the corruption-accused and that too after a minimum of 10 years.

The people have realised that their elected representatives do not do any legislative work and have started pointing to acts of corruption through the strong media. The people’s struggle for independence from the British has now turned into a democratic war against corruption. How can one expect a Prime Minister who does not exercise his franchise to wipe the tears of the aam aadmi who is suffering on account of rampant corruption? Development is now seen to be synonymous with corruption. To make the legislature do its duty, the people, who believe in a system of good governance, have turned to weapons of non-violence, such as satyagraha. For development to happen, India first needs independence from corruption.

Power is tempered with accountability; sans investigation, power is tower. This principle has been accepted in the Bill now introduced. But the supreme functions vested in this new instrument must be free from state control. Or else it becomes another tool of torture in the hands of the executive – a remedy aggravating the malady.

Prashant Bhushan has made a sound critique of the Bill. The larger the power, the more responsible is the accountability, lest the instrument destroy democracy. Today, if the judiciary delivers an authoritarian judgment, there is none to correct it nor is it accountable to any agency or authority. This makes judges a body of dictators.

The appointment of judges and the critique and correction of their fiats are vital. What is provided on this behalf is insignificant. Besides, access to correct the blunders of this arbitrary body, to make its selection democratic and transparent and its performance subject to a democratic organ has not been given due consideration. Under the guise of control over judicial and other instruments, we cannot create a royalty above all. That is, the choice is between fascism and a self-created authoritarian Grand Jury. The verdict of the jury for misbehaviour of the judiciary and executive authority will make the whole system self-contained and democratic without totalitarian bias.

Judges are not jungle creatures but maintain standards of conduct. During the days when J.S. Verma was the Chief Justice of India, an informal code of conduct was evolved, which commanded the concurrence of the judges of the High Court and the Supreme Court. This code of conduct, to have a binding force, must be incorporated in the Constitution itself and made enforceable. Thus, the standards of conduct of judges abhor corruption, misuse of power or other oblique behaviour. They can be enforced by the Grand Jury. The delinquent conduct not only of the judiciary but of all public authorities must be dealt with by the Grand Jury.

This steering body with final authority must be selected by a commission for appointment and performance. No longer confined to the judiciary but including every instrument that enjoys public power, the Grand Jury will sit for a period of 10 years and can be removed for misconduct only by the paramount power of the two Houses of Parliament. These are matters that have to be refined by the draftsman and presented to Parliament. These are rough ideas and have to be debated by Parliament and approved with a two-thirds majority. The whole process is cumbersome, but when complicated problems face a nation, the process has to be complicated. Fiat Justitia Ruat Caelum (Let justice be done though the heavens fall).

 Two fundamentals

 Two fundamentals that make the Grand Jury itself accountable may be indicated briefly. Public power becomes a terror unless it is accountable to the nation and makes itself accessible to the littlest Indian who has a grievance of corruption or improper behaviour justifying an inquiry into the conduct of the judges implicated. In principle, access to every citizen and accountability to ‘We, the People of India’ is accepted in the Lokpal Bill. I have suggested the creation of a basic authority with supreme powers. If both Houses of Parliament, each with two-thirds majority, have the power to appoint and to dismiss, surely it will be a grand wonder of paramount power.

Modifications and refinements may be necessary in what I have said. A national debate may bring out flaws, and faults and failings may be disclosed and corrected at the final stage. Egregious errors cannot be avoided in advance. Only when the nation debates the issue latent errors will become patent.It is my conviction, as I have repeated several times, that an appointments commission should be set up with transparency and opportunity for the public to speak up. When this article gains national circulation, new thought will surface and correction may still be possible. A performance commission also may be necessary. Perhaps, it is good to remember Edmund Burke’s observations: “Among a people generally corrupt, liberty cannot long exist.”

The Grand Jury I envision will be a powerful body, itself accountable to the people through Parliament, and its processes will be transparent and progressive. Glasnost and Perestroika are principles that apply to all instruments where state power is vested. After all, the greater the power, the more dangerous is the abuse. It is a fact that the former Chief Justice of India has been accused of corruption, and yet the Prime Minister has kept silent. While I have demanded power in Parliament even against the Grand Jury, that is because “in all forms of government people is the legislator”.

The former Chief Justice of India with grave aspersions against him is silent and the Prime Minister and Parliament are keeping guilty silence. But an event of corruption has happened, upon which it is difficult to speak and impossible to be silent. Dear Prime Minister, still I hold you as a statesman and straightforward repository of power. Parliamentarians, remember your duty to the nation. Speak up against corruption. Silence is grave guilt where it is your duty to speak on the side of the nation.

Dear Prime Minister, I still have great hopes from you. Act now and make the judiciary a credible instrument beyond suspicion, beyond delinquency. Manmohan Singh, you are the guardian of democracy for the nonce. Therefore, I cite Swami Vivekananda to impress upon you the basics of democracy and godism: “Feel, my children, feel; feel for the poor, the ignorant, the downtrodden; feel till the heart stops and the brain reels and you think you will go mad…. I do not believe in a God, who cannot give me bread here, giving me eternal bliss in heaven!”

http://www.hinduonnet.com/fline/stories/20110520281004100.htm