“When an Institution No Longer matters, we no longer matter.”

Supreme Court of India

Chief Justice of India Shri S H Kapadia- Speech on the ocassion of Law Day 2011

We have assembled today to celebrate the anniversary of a momentous event, the anniversary of the adoption of our Constitution, the day on which our founding fathers subscribed to this document by signing the same and thereby unfolding the philosophy – social, economic and political, for the governance of free India. We have every reason to be proud of and to celebrate that unique occasion. We take this opportunity to thank the founding fathers, for this document, who spent a good deal of their time and energy in giving shape to this suprema lex which was to guide the future destination of the country. We are ever grateful to them. The foremost reason why we are proud of our Constitution is that it promises governance through the Rule of Law. While in many countries which initially opted for a democratic form of Government the euphoria lasted for brief spells, we are of the view that in our country, notwithstanding its complexity, democracy has stabilized and democratic institutions have flourished. The survival of democracy in India has left many bewildered.

The socio-economic transformation – a welfare State and an egalitarian society as its objective – must also be through the process of law. It is true that such desired socio-economic transformation through process of law has been slow, however, the march has been steady. Today, rule-specific laws are being substituted by rights-specific laws (RTE, RTI, Food Security Bill). These socio-economic legislation requires a paradigm shift in the matter of interpretation of Article 14, Article 21 and Article 19(1)(g) of the Constitution. Courts have come from formal equality to egalitarian equality to the concept of Deprivation.

 Judicial independence is one of the essential elements of Rule of Law. Every civilized society has seen the need for an impartial and independent judiciary. The principle of Judicial Independence has acquired renewed significance, since the Constitution of India has conferred on the Judiciary the power of judicial review. However, keeping in mind the doctrine of Separation of Powers, Judiciary has to exercise considerable restraint to ensure that the surcharged democracy does not lead to a breakdown of the working of the Parliament and the Government. The Judiciary needs to work in the area demarcated by the Constitution. Awareness about rights has grown while correspondingly redressal from the Executive has been reduced. The Executive has its own compulsions – huge population, lack of resources, high inflation, global economic region etc. As a consequence litigation has multiplied. Despite commendable achievements in terms of disposal which I will presently demonstrate, the challenge is and should be for Zero Pendency in which direction a lot needs to be done.

Today, the crisis of confidence in human institutions has come to the forefront. The deficiency of every institution in tackling the growing and complicated social problems has become a common feature. It is a challenge for every institution. Every democratic institution needs to meet this challenge. The viability of judicial institutions depends upon their acceptability by the people. When the viability of the system gets into disrepute and ultimately the system becomes less and less useful to the community, the challenge lies in rejuvenating the system by restoring its credibility and people’s faith in it. Thus, the foremost challenge to the

Judiciary today is viability of the system. Citizens approach the Court only when there is confidence in the system and faith in the wisdom of the Judges. This is where the Public Trust doctrine comes in. The Institution stands on public trust.

 I am an optimist. I do not share the impression that judicial system has collapsed or is fast collapsing. I strongly believe and maintain that with all the drawbacks and limitations with shortage of resources and capacity, we still have a time-tested system. This is no justification to discard the system by giving it bad name. Judiciary has performed a commendable job, which is indicated by the Status Report. Before reading the statistical data, let me say that there is a need to highlight that all the stakeholders are accountable for maintaining and achieving standards of Court Excellence. The general tendency is to put the entire blame on the Judges.

The executive including the police and the Bar have an important role to play in expeditious disposal of cases. There is a backlog of cases, however, it is not as big as is sought to be projected. Please note that 74% of the cases are less than five years old. The focus: expeditious disposal of 26% of cases which are more than five years old i.e. “Five plus free” should be the initiative.

CONCLUSION :

B. R. Ambedkar delivering a speech to a rally ...

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India is an aspirational democracy. It is the shared idea of India to emerge from Society which has individuals of diverse ideologies, cultures and religious denominations. We must, therefore, identify common strands that will bind us, as one nation and one people. Unless this is done we cannot build a modern and strong India. In the hierarchy of values, judicial integrity is above judicial independence. Judicial accountability needs to be balanced with judicial independence. I would request the Bar as well as eminent jurists to deliberate upon constitutional concepts such as Judicial Independence and Judicial Accountability. We, the Judges, do not mind a studied fair criticism. However, as an advice to the Bar please do not dismantle an Institution without showing how to build a better one. Please remember “When an Institution No Longer matters, we no longer matter.”

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

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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

Govts Lokpal Bill Vs Jan Lokpal Bill: Comparative Chart

Rather than gunning for the corrupt and corruption, governments Lokpal seems to be gunning for those who complain against corruption. How will Governments Lokpal work?

Suppose some citizen files a complaint to Lokpal against some corrupt government servant. Before the investigations actually start, the government servant can file a cross complaint against the citizen straight to the special court, without any preliminary enquiry by any agency, that the complaint is false or frivolous. The government will provide free advocate to the government servant to file this case. The citizen will have to defend himself on his own!

Then there is stiffer punishment for the complainant than the corrupt government servant. If the Special Court concludes that the complaint is frivolous or false, the citizen faces a minimum of two years of punishment. But if the corruption charges against government servant are proved, there is a minimum of six months of punishment for the corrupt government servant!

Governments Lokpal will have jurisdiction over all NGOs in the country but it will have jurisdiction over less then o.5% of all government employees. Government argued that the Lokpal would get overwhelmed with too many cases if all public servants were brought under its ambit. So, government has restricted its jurisdiction only to 65,000 Group A officers. Also, state employees will not be covered by Lokpal. There are 4 million central government employees and 8 million state government employees.

In sharp contrast, all NGOs are covered under governments Lokpal, small or big, whether in state or centre. Even unregistered groups of people in remote villages are covered under the ambit of Lokpal. So, in a remote village, if a group of youngsters detect corruption in panchayat works using RTI, the youngsters can be hauled up by Lokpal but Lokpal would not have jurisdiction over Sarpanch, BDO or their corruption.

Whereas Lokpal would not have jurisdiction over Delhi government officials, it would have jurisdiction over all RWAs in Delhi. All small neighborhood groups who raise donations to do Ramlila or Durga Puja would be under Lokpals scanner. Lokpal could haul up activists from any of the farmers, labour, anti-corruption, land, tribal or any other movements. All the movements whether registered or not, are under the jurisdiction of Lokpal.

There are 4.3 lakh registered NGOs. But there would be several million unregistered groups across the country. Lokpal would have jurisdiction over all of them. No one can dispute the fact that corruption in NGOs needs to be addressed. But how can you leave most public servants out of Lokpals purview but bring NGOs upto village level within its purview?

 Issue Our view Governments view Comments
Prime Minister Lokpal should have power to investigate allegations of corruption against PM. Special safeguards provided against frivolous and mischievous complaints PM kept out of Lokpals purview. As of today, corruption by PM can be investigated under Prevention of Corruption Act. Government wants investigations to be done by CBI, which comes directly under him, rather than independent Lokpal
Judiciary Lokpal should have powers to investigate allegation of corruption against judiciary. Special safeguards provided against frivolous and mischievous complaints Judiciary kept out of Lokpal purview. Government wants this to be included in Judicial Accountability Bill (JAB). Under JAB, permission to enquire against a judge will be given by a three member committee (two judges from the same court and retd Chief justice of the same court). There are many such flaws in JAB. We have no objections to judiciary being included in JAB if a strong and effective JAB were considered and it were enacted simultaneously.
MPs Lokpal should be able to investigate allegations that any MP had taken bribe to vote or speak in Parliament. Government has excluded this from Lokpals purview. Taking bribe to vote or speak in Parliament strikes at the foundations of our democracy. Governments refusal to bring it under Lokpal scrutiny virtually gives a license to MPs to take bribes with impunity.
Grievance redressal Violation of citizens charter (if an officer does not do a citizens work in prescribed time) by an officer should be penalized and should be deemed to be corruption. No penalties proposed. So, this will remain only on paper. Government had agreed to our demand in the Joint committee meeting on 23rd May. It is unfortunate they have gone back on this decision.
CBI Anti-corruption branch of CBI should be merged into Lokpal. Government wants to retain its hold over CBI. CBI is misused by governments. Recently, govt has taken CBI out of RTI, thus further increasing the scope for corruption in CBI. CBI will remain corrupt till it remains under governments control
Selection of Lokpal members 1. Broad based selection committee with 2 politicians, four judges and two independent constitutional authorities. 2. An independent search committee consisting of retd constitutional authorities to prepare first list. 3. A detailed transparent and participatory selection process. 1. With five out of ten members from ruling establishment and six politicians in selection committee, government has ensured that only weak, dishonest and pliable people would be selected.
2. Search committee to be selected by selection committee, thus making them a pawn of selection committee
3. No selection process provided. It will completely depend on selection committee
Governments proposal ensures that the government will be able to appoint its own people as Lokpal members and Chairperson. Interestingly, they had agreed to the selection committee proposed by us in the meeting held on 7th May. There was also a broad consensus on selection process. However, there was a disagreement on composition of search committee. We are surprised that they have gone back on the decision.
Who will Lokpal be accountable to? To the people. A citizen can make a complaint to Supreme Court and seek removal. To the Government. Only government can seek removal of Lokpal With selection and removal of Lokpal in governments control, it would virtually be a puppet in governments hands, against whose seniormost functionaries it is supposed to investigate, thus causing serious conflict of interest.
Integrity of Lokpal staff Complaint against Lokpal staff will be heard by an independent authority Lokpal itself will investigate complaints against its own staff, thus creating serious conflicts of interest Governments proposal creates a Lokpal, which is accountable either to itself or to the government. We have suggested giving these controls in the hands of the citizens.
Method of enquiry Method would be the same as provided in CrPC like in any other criminal case. After preliminary enquiry, an FIR will be registered. After investigations, case will be presented before a court, where the trial will take place CrPC being amended. Special protection being provided to the accused. After preliminary enquiry, all evidence will be provided to the accused and he shall be heard as to why an FIR should not be regd against him. After completion of investigations, again all evidence will be provided to him and he will be given a hearing to explain why a case should not be filed against him in the court. During investigations, if investigations are to be started against any new persons, they would also be presented with all evidence against them and heard. Investigation process provided by the government would severely compromise all investigations. If evidence were made available to the accused at various stages of investigations, in addition to compromising the investigations, it would also reveal the identity of whistleblowers thus compromising their security. Such a process is unheard of in criminal jurisprudence anywhere in the world. Such process would kill almost every case.
Lower bureaucracy All those defined as public servants in Prevention of Corruption Act would be covered. This includes lower bureaucracy. Only Group A officers will be covered. One fails to understand governments stiff resistance against bringing lower bureaucracy under Lokpals ambit. This appears to be an excuse to retain control over CBI because if all public servants are brought under Lokpals jurisdiction, government would have no excuse to keep CBI.
Lokayukta The same bill should provide for Lokpal at centre and Lokayuktas in states Only Lokpal at the centre would be created through this Bill. According to Mr Pranab Mukherjee, some of the CMs have objected to providing Lokayuktas through the same Bill. He was reminded that state Information Commissions were also set up under RTI Act through one Act only.
Whistleblower protection Lokpal will be required to provide protection to whistleblowers, witnesses and victims of corruption No mention in this law. According to govt, protection for whistleblowers is being provided through a separate law. But that law is so bad that it has been badly trashed by standing committee of Parliament last month. The committee was headed by Ms Jayanthi Natrajan. In the Jt committee meeting held on 23rd May, it was agreed that Lokpal would be given the duty of providing protection to whistleblowers under the other law and that law would also be discussed and improved in joint committee only. However, it did not happen.
Special benches in HC High Courts will set up special benches to hear appeals in corruption cases to fast track them No such provision. One study shows that it takes 25 years at appellate stage in corruption cases. This ought to be addressed.
CrPC On the basis of past experience on why anti-corruption cases take a long time in courts and why do our agencies lose them, some amendments to CrPC have been suggested to prevent frequent stay orders. Not included
Dismissal of corrupt government servant After completion of investigations, in addition to filing a case in a court for prosecution, a bench of Lokpal will hold open hearings and decide whether to remove the government servant from job. The minister will decide whether to remove a corrupt officer or not. Often, they are beneficiaries of corruption, especially when senior officer are involved. Experience shows that rather than removing corrupt people, ministers have rewarded them. Power of removing corrupt people from jobs should be given to independent Lokpal rather than this being decided by the minister in the same department.
Punishment for corruption 1. Maximum punishment is ten years
2. Higher punishment if rank of accused is higher
3. Higher fines if accused are business entities
4. If successfully convicted, a business entity should be blacklisted from future contracts.
None of these accepted. Only maximum punishment raised to 10 years.
Financial independence Lokpal 11 members collectively will decide how much budget do they need Finance ministry will decide the quantum of budget This seriously compromises with the financial independence of Lokpal
Prevent further loss Lokpal will have a duty to take steps to prevent corruption in any ongoing activity, if brought to his notice. If need be, Lokpal will obtain orders from High Court. No such duties and powers of Lokpal 2G is believed to have come to knowledge while the process was going on. Shouldnt some agency have a duty to take steps to stop further corruption rather than just punish people later?
Tap phones Lokpal bench will grant permission to do so Home Secretary would grant permission. Home Secretary is under the control of precisely those who would be under scanner. It would kill investigations.
Delegation of powers Lokpal members will only hear cases against senior officers and politicians or cases involving huge amounts. Rest of the work will be done by officers working under Lokpal All work will be done by 11 members of Lokpal. Practically no delegation. This is a sure way to kill Lokpal. The members will not be able to handle all cases. Within no time, they would be overwhelmed.
NGOs Only government funded NGOs covered All NGOs, big or small, are covered. A method to arm twist NGOs
False, Frivolous and vexatious complaints No imprisonment. Only fines on complainants. Lokpal would decide whether a complaint is frivolous or vexatious or false. Two to five years of imprisonment and fine. The accused can file complaint against complainant in a court. Interestingly, prosecutor and all expenses of this case will be provided by the government to the accused. The complainant will also have to pay a compensation to the accused. This will give a handle to every accused to browbeat complainants. Often corrupt people are rich. They will file cases against complainants and no one will dare file any complaint. Interestingly, minimum punishment for corruption is six months but for filing false complaint is two years.

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