‘Genuine movement’

Arun Jaitley

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VENKITESH RAMAKRISHNAN & AJOY ASHIRWAD MAHAPRASHASTA IN THE FRONTLINE

Interview with Arun Jaitley, BJP leader and Leader of the Opposition in the Rajya Sabha.

THE interventions in the monsoon session of Parliament by Arun Jaitley, the Leader of the Opposition in the Rajya Sabha, have been rated as “masterly” by a large number of seasoned Parliament-watchers. During the course of these interventions, which saw him make important observations on the legal and constitutional dimensions of the issues relating to corruption and the Lokpal Bill, the Bharatiya Janata Party leader also adopted the role of an “in-depth political analyst and visionary” who had cast off the limitations of a “narrow, sectarian politician”. In this interview to Frontline, Jaitley elaborated on these interventions and delineated his understanding of the future course of action on issues such as the Lokpal Bill. Excerpts:

Parliament has conceded three points raised by Team Anna on the Lokpal Bill, and the Standing Committee is going to look at the provisions of the Bill. What will be the broad road map on the issue?

Logically, all issues and viewpoints on which parliamentary consensus was built up after the recent debates will be placed before the Standing Committee. The committee should hold extensive public consultations and come out with a report expeditiously so that the final draft, with amendments, can be approved by the Cabinet. Hopefully, the government will introduce the amended Bill in the winter session.

What is the BJP’s position on the Lokpal issue?

There are two underlying principles that should guide the issue. There should be wide scope for government offices coming under the Lokpal’s jurisdiction. It should be a strong, independent Lokpal. The judiciary should have an alternative mechanism, where I prefer the National Judicial Commission. The appointment mechanisms should be completely independent; not excluding the government, but the government should not be able to be dominate or control it. So it should be an institutional mechanism. And it should be a mechanism where we are able to eventually bring in various other institutions. The institution of Lokpal should follow fair procedures. For instance, we should be able to bring in [under its purview] civil servants who work in state instrumentalities.

The only other factor that should be taken into consideration is that the Lokpal Bill should be consistent with constitutional requirements. There are four areas that need to be stressed in this connection. One, when you deal with the judiciary, you have to keep it independent of the executive. Therefore, the mechanism for the judiciary should be separate and not executive-centric.

Two, the principles of federal polity enshrined in the Constitution should not be affected by the Lokpal Bill. The Centre pressing for Lokayuktas in the States can compromise the federal principles of the Constitution. For instance, can the Centre legislate on a law dealing with State bureaucracy? My prima facie view is that with regard to some criminal law procedures, the Centre can, but not with regard to disciplinary and inquiry procedures against the State bureaucracy. The Centre can at best pass an enabling law under Article 252 of the Constitution [Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State] or a model law, but not a binding law. The States will have to do it. Therefore, the fight against corruption should not compromise the federal principles. I have already spoken about the issue to Team Anna.

Three, in relation to the conduct of the Members of Parliament inside the House, the Bill should be consistent with Article 105 of the Constitution [power and privileges of the Houses of Parliament and of the members and committees].

Four, in relation to who takes disciplinary action – those who hold a civil post in the Central and State governments have protection under Article 307; that constitutional protection should not be affected.

Now, having covered all these areas, we can say that the Prime Minister should be covered but we can exclude certain functions; functions predominantly in the areas of public order and national security.

There is a suggestion that the functions of intelligence agencies relating to external affairs should not be covered. These are issues that should be fine-tuned by the Standing Committee.

There are other questions, too. Such as whether the entire bureaucracy should be covered and whether it should be entirely under the Lokpal. I think we would like the entire bureaucracy to be accountable. But the government has said there can be a splitting of functions in which the lower bureaucracy can come under the Central Vigilance Commission. There is a third proposal, that the lower bureaucracy can be put under a CVC, which in turn could be monitored by the Lokpal.

Should MPs be covered? Yes, obviously, but what they say inside the House, protected by the privileges of Article 105, should not be covered. These are issues of workability and accountability, which the Standing Committee can look into keeping the major principles in mind.

I have objected to only one point that is found in both the Bills [the Jan Lokpal and the government’s Bill], that is, the bugging of telephones. This can compromise national security. It violates personal liberty. I hope the Standing Committee will consider this.

The idea of attaching property of those charged with corruption has also raised objections.

There are already laws in some States that address this issue. There is a law of 1945 called Criminal Law Amendment Ordinance. The principle behind attaching property is that you cannot profit out of corruption. The court can attach corrupt money, not an executive authority, and use it for national development. The money should not wither away or you should not be able to dispose of the corrupt money. Proceeds of narcotics and smuggling money are invested in the state. Why not in the case of corrupt money? Bihar has brought this law. Other States are following suit.

There is a view that the BJP has spoken in different voices, especially with regard to the Jan Lokpal Bill.

The positions I have enunciated in Parliament are the party’s positions.

 Several votaries of the Jan Lokpal Bill hold the view that the existing anti-corruption laws are completely faulty and inefficient. Do you agree?

I think to say they are completely faulty may not be correct. They are a bit lax, a bit liberal, and capable of misuse. At times the law works, at times it does not. Seeing the enormity of corruption, you do not see so many people punished. A Lokpal may not be able to eliminate corruption but the fear of the Lokpal and of being tried under a fair mechanism may certainly be some kind of a deterrent.

Do you think this movement has created an unprecedented public sensibility?

I think this movement was genuine. No major parties participated. Sympathisers and workers did join it, but in their capacity as citizens. It was genuinely a citizens’ movement. It had a lot of goodwill. Such kind of consciousness is a positive development in India.

Do you subscribe to the view that such protest methods are symbolic of bypassing representative democracy?

I do not think it is fair to say that they were bypassing [representative democracy]. They were not saying they had the power to legislate, and not Parliament. Yes, they did bring pressure on Parliament. But we should treat them as a pressure group. They have the right to campaign and we have an obligation to listen to them. I think the government did not have a game plan. I have spoken to Team Anna at least three times. And on most issues, I have found its stand to be extremely reasonable, and after a little diversion we have converged on the same opinion. On the question of excluding certain functions of the Prime Minister, we are of the same view. Regarding the judiciary, we are of the same opinion also.

 There is a feeling in many quarters that the political class as a whole has lost the moral authority in the context of the movement.

I do not think this is fair. You see, there is a campaign against the political class. The campaign is also against Parliament. I still believe that there are still a large number of good and honest people in various political parties. There are aberrations also. But there is still a space for decency and ethics in politics and that space is being encouraged by such strong public opinion. There is no reason to be cynical. But if you pick up each one of the debates in Parliament in this session, I can tell you some of the debates have been exemplary. For instance, if you see the debate on the day Anna Hazare was arrested, or on the Lokpal Bill, or the impeachment debate, the quality has been very good. The fact is that if private television channels feel that the debates are bringing them TRPs and they cut out to Parliament for speeches, that itself means that people are interested. The stronger the public opinion, the more the viewership of parliamentary speeches, both in the electronic and the print media.

Provocative statements are being made against Parliament. We must not be vindictive in our actions even then. We should not make angry reactions or get provoked. What we do on the issues will be our response to the people. Even without this movement, States such as Madhya Pradesh, Bihar, Uttar Pradesh, Punjab and Himachal Pradesh have brought out Citizens’ Charters. This is a significant response and this is the way it should be.

http://www.frontline.in/stories/20110923281901400.htm

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Why all in one?

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USHA RAMANATHAN IN THE FRONTLINE

Given the experience with extraordinary powers vested in any institution, the wisdom of having a super-powerful body must be debated.

IT is axiomatic that it is the state that has the exclusive power to make law. As is true of many axioms, this too reflects reality only in part; various groups do, in fact, influence lawmaking. The Disabilities Act, 1995; the Right to Information Act, 2005; and the National Rural Employment Guarantee Act (NREGA), 2005, are obvious examples. Yet, alongside this experience is the intransigence of the state, which the Lokpal debate has thrown into sharp focus.

The government’s Lokpal Bill, 2011, was introduced in the Lok Sabha on August 4, following tough talking and hard bargaining by five members of a civil society team. Yet, this Bill manages to remain status quoist even while ceding some ground. Its ‘Lokpal’ will be a chairperson with a maximum of eight other members, half of whom are to be judicial members. The pool from which it will draw its candidates is populated with sitting and retired judges of the Supreme Court and Chief Justices of High Courts. The appointment process, too, is more of the same.

The government is, by instinct and practice, loath to dilute its control over what it creates, and the Lokpal Bill too is witness to this. The chairperson or any other member is to be removed from office on the grounds of misbehaviour on a report from the Supreme Court, on the basis of an inquiry made by it. The Supreme Court may, however, act only when the reference has been made to it “by the President”, on a petition signed by at least a hundred Members of Parliament or, again, by the President, on a petition from a citizen where the President is satisfied that such reference should be made.

Acceding to the demands of the team of five, the Bill has accepted the formula of a separate investigation wing and a prosecution wing to be constituted by and under the control of the Lokpal. There is relative fiscal autonomy where the Lokpal is to prepare its budget each year, which is to be sent to the Central government “for information”.

The sticky issue of whether the Prime Minister should be subject to the Lokpal’s scrutiny has been answered by including him – “after he has demitted the office of the Prime Minister”. Ministers, MPs and high-ranking officials are within this law, but not the lower bureaucracy.

The inclusion of any person belonging to “any association of persons or trust (whether registered under any law for the time being in force or not) in receipt of any donation from the public” is being read as a way of getting back at a public that has placed the government in this difficult spot. The notable absence of corporations from the ambit of this Bill has drawn adverse comments, especially given the role corporations are to have had in so many recent scams.

Prosecution or disciplinary proceedings, the power of search or seizure, provisional attachment of assets, and the power to recommend transfer or suspension of a public servant who is connected with allegations of corruption are all in the Bill, as are provisions providing for declaration of assets and adverse inference where assets not declared are found in the possession of or in use by a public servant.

Perhaps the most striking deviation from extant law is the change in the nature of the ‘sanction’ power. The power of the executive to withhold sanction for prosecution has been a huge hurdle to holding the corrupt guilty. The government Bill hands over to the Lokpal the power to give or withhold sanction. The Jan Lokpal Bill, too, adopts this approach. Neither, however, acknowledges the changes that have been introduced in the Torture Bill, which, carefully, does not leave the power in anybody’s discretion. It, instead, requires that where the decision is not to allow prosecution, reasons have to be given, which may, then, be subject to judicial review. That places a check on arbitrary use of power by any agency. The formula in the two Bills relocates the discretion in the Lokpal but does not change the nature of that power to exercise discretion.

The presumption of ‘good faith’ – that everything done by a public servant shall be presumed to be done “in good faith or intended to be done in the discharge of official functions or in exercise of his powers” – has been retained.

Generally, then, the government Bill is more of the same with one significant change, some reluctant halfway measures, and much that has been left unconsidered.

The Jan Lokpal Bill has moved through many versions. In June, version 2.3 was made available on the website of India Against Corruption (IAC). Mildly put, this Bill is markedly at variance with the government Bill. This Bill envisages a Lokpal that would have “administrative, financial and functional independence from the government”. To achieve this, the Lokpal is to have its own investigating agency, which it will supervise, monitor and direct. It will appoint and dispense with the services of its investigators.

The arm of the Central Bureau of Investigation (CBI) that investigates corruption is to be excised from it and subsumed in the Lokpal. Some years ago, in an effort to give functional autonomy to the CBI from its political masters, the Supreme Court shifted control of the CBI to place it in the Central Vigilance Commission (CVC). The Jan Lokpal Bill works on the unreasoned belief that the Lokpal will not succumb to the temptations of such extensive control over the investigating agency.

Powers of the Lokpal

The powers of the Lokpal are elaborate and have been set out in two clauses in the Bill. They include the power to

“Appoint judicial officers, prosecutors and senior counsel.”

Initiate and monitor the progress of prosecution.

“Attach property and assets acquired by corrupt means and to confiscate them in certain cases.”

“Recommend cancellation or modification of a lease, licence, permission, contract or agreement if it was obtained by corrupt means, and to recommend blacklisting of a firm, company, contract or any other person involved in an act of corruption.” In this case, the public authority shall either comply with the recommendation or reject it within a month of receiving it. If rejected, the Lokpal “may approach the appropriate High Court seeking appropriate directions to be given to the public authority”.

“Ensure due compliance of its orders by imposing penalties on persons failing to comply with its orders.”

“Initiate suo motu appropriate action… on receipt of any information from any source about any corruption.”

Make recommendations to public authorities, in consultation with them, “to make changes in their work practices to reduce the scope of corruption and whistle-blower victimisation”, and the authority concerned is to send a compliance report within two months.

“Prepare a sentencing policy under the Prevention of Corruption Act and revis(e) it from time to time.” This is an extraordinary prescription by which parliamentary power to detail the policy of punishment is moved to the discretion of the Lokpal. The punishment for corruption can be set anywhere between six months and a life sentence.

“Prepare an appropriate reward scheme to encourage complaints from within and outside the government to report acts and evidence of corruption.”

Enquire into the statements of declaration of assets “filed by all successful candidates after any election to any seat in any House of Parliament”.

Punish a public servant with imprisonment up to six months or fine or both “if he fails to comply with its orders for ensuring the compliance”.

Assume competence to investigate any offence under any other law while investigating an offence under the Prevention of Corruption Act.

Interception and monitoring of various media of communication can be undertaken at the behest of the Lokpal – and a member of the core committee claimed recently that this was non-negotiable.

The breadth of the Lokpal’s interest includes within it complaints of corruption against the Prime Minister, Ministers and MPs, and the higher judiciary, and these shall be looked into by a bench of seven members if the Lokpal so decides. The Lokpal will, among its other functions, protect the whistle-blower and the Right to Information (RTI) activist; deal with grievances where there is a delay or non-performance in delivery of services; and ensure that its own staff does not practice corruption.

A complex appointment process and a complaints procedure by which anyone may complain to the Supreme Court, which will then inquire and decide whether a Lokpal is guilty as charged, are the bulwarks offered against excessive power corrupting the Lokpal.

The inadequacy of these protections has been raised and needs much discussion and reasoned debate.

A multiplicity of powers – to legislate, judge, punish and protect – are to be placed in this institution of the Lokpal. There are questions about constitutionality, separation of powers, checks and balances, and the consequence of absolute power waiting to be addressed in this Bill. It does, however, provide a useful counterpoint to the government Bill.

A postscript: although having the Lokayuktas in the Act is one of the demands, the Jan Lokpal Bill does not elaborate on this theme and stops with stating that “similar provisions for Lokayuktas… will have to be incorporated in the Bill”.

The National Campaign for People’s Right to Information (NCPRI) has proposed a “basket of measures” in place of an omnibus law that vests all the power, and responsibility, in a Lokpal. These largely draw upon Bills pending in Parliament and work at improving and strengthening them. These are the Judicial Standards and Accountability Bill, the Whistleblowers’ Bill, the Lokpal Bill and the toughening up of the Central Vigilance Commission Act, 2003. In addition, a National Grievance Redress Bill, 2011, has been drafted to cover the complaints that arise in the delivery of services.

The NCPRI position is that loading one institution with the work of dealing with corruption and inefficiency in the lower bureaucracy, protecting whistle-blowers and RTI activists, and confronting big-ticket corruption would make for an impossible agenda. As for the judiciary, the independence of the judiciary must be preserved, as must the separation of powers; and dealing with matters of standards and corruption in the judiciary would best be by a separate law. The NCPRI documents are offered as critiques and drafts meant to facilitate discussion.

Suggestions emanating from the Lok Satta and the Foundation for Democratic Reforms reflect on the proposals currently on the table and open the door for discussion. A Bahujan Lokpal Bill, 2011, sent to the Standing Committee brings into the debate the issue of representation in such a powerful body and the recognition of the diversion of funds and policy focus from the Scheduled Castes, for instance, to other purposes as happened during the Commonwealth Games.

Some of the changes that may be brought may need a constitutional amendment. Congress general secretary Rahul Gandhi made a suggestion in Parliament that the Lokpal may be made into a constitutional entity, a suggestion that has been seconded by former Chief Election Commissioner T.N. Seshan.

Given the experience with extraordinary power when vested in any institution, the wisdom of having such a super-powerful, insulated body awaits serious deliberation.

Usha Ramanathan is an independent law researcher working on the jurisprudence of law, poverty and rights.

http://www.frontline.in/stories/20110923281902400.htm

Objection, your honour

THE ROT IN JUDICIARY

THE ROT IN JUDICIARY

SATYA PRAKASH IN THE HINDUSTAN TIMES

As Justice Soumitra Sen of the Calcutta High Court faces impeachment proceedings, the focus is back on corruption in the Indian judiciary, often accused of opposing measures to introduce transparency and accountability in an institution that also judges the works of the Legislature and the

Executive.

During the debate on the resolution in the Rajya Sabha to remove Justice Sen, cutting across party lines, MPs attacked the judiciary for corruption, lack of accountability and the collegium system of appointments, in which the executive hardly has any role to play. No wonder, in his farewell speech, Justice VS Sirpurkar of the Supreme Court described the statements against the judiciary as “indigestible”.

Should the Judiciary be under Lokpal?
Gandhian Anna Hazare, who had been on an indefinite fast since August 16 to demand a strong Lokpal (anti-corruption ombudsman), first demanded that the judiciary be brought under the Lokpal. However, team Anna is now said to have agreed to keep the judiciary out of the purview of the Lokpal if the government simultaneously brings the Judicial Standards and Accountability Bill with strong provisions to deal with judicial corruption.

“Judiciary can’t be covered by this (proposed) Lokpal. It should be covered by another alternative mechanism. We call it the National Judicial Commission,” leader of Opposition in the Rajya Sabha Arun Jaitley said on August 18, during the debate on Sen’s impeachment.
According to former Chief Justice of India PN Bhagwati, bringing the judiciary under the Lokpal would “seriously” affect its independence. Only a “specialised agency” should be entrusted to ensure accountability in the judiciary, whose autonomy could be compromised if brought under the Lokpal, Bhagwati said in an open letter to Hazare.

The Judicial Standards and Accountability Bill, 2010
The UPA government introduced the Judicial Standards and Accountability Bill in the Lok Sabha on December 1, 2010. It proposes to lay down judicial standards, provide for the accountability of judges, and requires them to declare their assets and liabilities, and also that of their spouse and children.

The Bill requires judges to practise universally accepted values of judicial life, such as prohibition on close association with individual members of the Bar who practise in the same court as the judge and allowing family members who are members of the Bar to use the judge’s residence for professional work.

Law Commission Vice Chairman KTS Tulsi terms it a historic step, saying, “For the first time judges’ conduct is being defined by a statute.”
The proposed law is to replace the Judges (Inquiry) Act, 1968 that lays down procedure for removal of the Supreme Court and high court judges. But most importantly, it empowers the common man to file complaints against judges of the high courts and the Supreme Court.

The numbers game
Under the present system provided for in the Judges (Inquiry) Act, 1968, the process for removal of a judge can be initiated through a resolution either by 100 Lok Sabha members or 50 Rajya Sabha members.

After the MPs submit a duly signed motion to the Lok Sabha speaker or Rajya Sabha Chairman, the presiding officer constitutes a three-member committee to probe the allegations and determine if it is a fit case for initiating the impeachment process.

If the panel indicts the judge, the resolution for removal has to be passed by two-thirds majority in both Houses in the same session. The resolution is then sent to the President, who orders removal of the judge. The judge is given an opportunity to defend him/her.

While retaining the reference procedure, the Bill proposes to introduce a complaint procedure to empower the aam admi to file complaints against judges of the high courts and the Supreme Court.

It seeks to establish two authorities — a National Judicial Oversight Committee and a Scrutiny Panel — to investigate complaints against judges.

The Oversight Committee will comprise a retired Chief Justice of India as the chairperson, a judge of the Supreme Court nominated by the sitting Chief Justice of India, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President. The scrutiny panel shall comprise a former Chief Justice and two sitting judges of that court.

A Parliamentary panel on Law and justice is said to have recommended inclusion of one MP each from the Lok Sabha and the Rajya Sabha in the Oversight Committee.  Initial complaints will be made to the Oversight Committee, and they will be referred to the scrutiny panel constituted in the Supreme Court and in every High Court.

If the scrutiny panel feels there are sufficient grounds for proceeding against the judge, it shall report on its findings to the Oversight Committee.

When the panel finds that the complaint is frivolous, or that there not sufficient grounds for inquiring against into the complaint, it shall submit a report to the Oversight Committee giving its findings for not proceeding with the complaint.

If the scrutiny panel recommends investigation into a complaint against a judge, the Oversight Committee will constitute an investigation committee to probe into the complaint. The probe panel will comprise three members. It will frame definite charges against the judge and shall communicate the same to the judge, who shall be given an opportunity to present the case, but if the judge chooses not to be heard, the proceedings may be heard without him present.

THE TAINTED GALLERY

THE TAINTED GALLERY

The Removal of a judge

If the Oversight Committee feels that the charges proved against the judge merit his/her removal, it shall request the judge to resign voluntarily, and if the judge fails to do so, it shall advise the president to proceed with the removal of the judge. In such a case, the President shall refer the matter to Parliament, where the rest of the procedure is the same as the one in the case of a motion moved by MPs.

The Bill exempts documents and records of proceedings related to a complaint from the purview of the RTI Act, 2005 but the reports of the investigation committee and the order of the Oversight Committee can be made public. The tainted judges gallery

Why The Collegium stays

Under Article 124(2) and Article 217(1) of the Constitution, a judge of Supreme Court/High Court has to be appointed by the President after “consultation” with the Chief Justice of India (CJI). The government was not bound by the CJI’s recommendation. But in 1993, the Supreme Court introduced the collegium system, taking over primacy in appointments to higher judiciary. A nine-judge Constitution Bench in 1998 ruled that “consultation” must be effective and the chief justice’s opinion shall have primacy. Now India is the only nation in the world where judges appoint judges. In 2008, the Law Commission favoured restoration of pre-1993 position. Despite the UPA government criticising the collegium system, the Bill does not propose to change it.

Post-retirement carrots

During his speech on Sen’s impeachment, Jaitley said: “The desire of a job after retirement is now becoming a serious threat to judicial independence.” Tulsi also described it as a menace. “I agree with Jaitley that judges should not be given post-retirement jobs. If a statute requires a judicial person, a sitting judge can be appointed.”

The way forward

Prevention is better than cure. What is needed is a system that ensures only an honest person becomes a judge. If that happens, the occasion for removal of a judge may not arise.  Also, the collegium system must go, says former law minister Ram Jethmalani. “Setting up a National Judicial Commission is the only solution. The Commission must have the powers to appoint, transfer and remove judges,” he said.

He, however, said: “It should be a broad-based body comprising a government representative, the leader of the opposition and representatives of the judiciary, organised Bar, academic world and the world of social sciences.”

http://www.hindustantimes.com/Objection-your-honour/H1-Article1-738669.aspx

‘Do not insist on forcing us to do something that goes against the oath of our office’

Raj Ghat, Delhi is a memorial to Mahatma Gandh...

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INDIAN EXPRESS

Vandita Mishra: The Anna Hazare movement has been gaining momentum. In your interaction with MPs, do you see a shared sense of siege because of what is happening right now?

There is near unanimity in the country and amongst parliamentarians that corruption is a national issue. However, there is equal unanimity amongst parliamentarians that the way forward to address corruption is not to call into question the entire constitutional edifice where parliamentary supremacy in the matter of law-making is non-negotiable. In a republic inspired by Mahatma Gandhi, you can’t completely ignore the constitutional means for addressing a national malaise. But you should address corruption in a way consistent with the sanctity of our Constitution.

Coomi Kapoor: Are you saying unconstitutional means are being used? All they are doing is building up public opinion so that parliamentarians take into account the views of the public for this long delayed Bill.

The right to dissent, the right to protest and the right to mobilise opinion is given and it is respected and accepted. This is the reason why Anna and his team are fasting at Ramlila Maidan. In fact, the state is making all arrangements to facilitate the protest. What is an issue is the inclination to put a gun to the government’s head and say this is the Bill that you must legislate into law and you must do so by such and such time irrespective and in derogation of the established procedure of law-making as per the Constitution. How can you, in the name of advancing a laudable national objective, completely negate the permissible means under your Constitution? Now the argument is that we, the people of India, come first in the Constitution, therefore, everything else is subservient to the will of the people. Even with this I have no quarrel. But how do you determine the will of the people? The Constitution ordains that you determine the will of the people after every five years through an election. If you insult the collective judgment of the people of India, you are not advancing democracy. This is my view as a citizen of this country, as a constitutionalist, as a lawyer. The Constitution is intended to be a bulwark against the impulses of transient majorities. Majorities will come and go but the Constitution is supposed to be an enduring edifice.

Dilip Bobb: The general impression is that the government is now employing delaying tactics. How do you convince them that you are with them and not against them?

Let me tell you what this government has done so far: it’s not as if PM made his appeal for the first time last Tuesday–he used every opportunity to say that any peaceful contestation can be the subject of a debate. He has said, let us have a stronger Lokpal Bill based on a larger political consensus. He said he was not against the protest, he was concerned about Anna’s health. But don’t insist on forcing us to do something against the oath of our office. As a duly-elected government, we are voted into power and we want to uphold the Constitution of India. In the parliamentary process of law-making, the Standing Committee is a time-tested process which has produced very good legislation. Today, the atmosphere in the country is such that there is an earnestness to push for Lokpal as an instrument to remove corruption. But to say, do it by tomorrow and discount the Standing Committee procedure, to say that you want a bill to be rammed through in a manner that tomorrow somebody can ask why we have consciously ignored contrary views–that’s where we have issues. The same Constitution that gives me the right to the validity of my views, gives to the other the right to contest those views. But if you insist on deadlines, you are negating the first principle on which this republic is founded. What prevents another group from saying they will sit at Rajpath? If the government starts to buckle on issues of principle, the government will have no right to ask the citizens to comply with the law.

Coomi Kapoor: But the government has buckled, firstly by making Anna Hazare a member of the official drafting committee. Then you said the PM has to be out of the Lokpal and you buckled on that too. There has been a series of retractions from the government which shows that things are not that hard and fast.

There are give and take situations but there has never been a negation of an express constitutional stipulation. There is no bar on the Standing Committee to take into consideration the Jan Lokpal Bill.

Coomi Kapoor: But earlier the government had said it was not possible?

The difference is in what was being said by the Anna camp–that the Standing Committee should discuss “our” Bill. The process of law is that the Cabinet prepares a format which goes to Parliament, and that Bill is presented to the Standing Committee. There is no precedent for anyone insisting that the government takes only their Bill; if the government agrees with their Bill, it can present it to the Standing Committee as its own–there is no difficulty in that. But to tell us to disown our own Bill and to discuss only ‘your’ Bill amounts to law-making being outsourced to people who, as per the Constitution, cannot be the lawmakers. And the day you make a deliberate departure from the expressly stated and incontrovertible stipulation of the Constitution, you violate your oath of office. No government worth its name can consciously negate the fundamental principles of the Constitution.

Maneesh Chhibber: You said you can’t outsource lawmaking to anybody. So what is the National Advisory Committee (NAC) doing?

NAC is doing nothing other than submitting its suggestions. Name one law which NAC has insisted upon, the manner in which Anna Hazare is insisting. I cannot recall NAC ever insisting on anything.

Pradeep Kaushal: Why did you outsource drafting of the Lokpal Bill to the committee where half the members were from civil society?

It was a limited decision made in order to ensure that their views were fully taken on board. There is no constitutional or legal bar to not associate somebody with the draft. The bar is on the Bill we eventually bring before Parliament. After the drafting committee came to a conclusion, the ministers accepted some of Hazare’s suggestions and did not accept others. Then they presented the Bill to the Cabinet, which, in turn, endorsed it to make it a government Bill. That was presented before Parliament. We associated with these people purely to make sure that they had a full say in giving their inputs while the members of the government in that committee were formulating the draft.

Vandita Mishra: People say the government’s case is being made on too many legal, technical grounds and there is not enough of a political input.

Political issues are responded to politically as the PM has done last week. It is a political response of a sensitive and responsive PM who is concerned about the way things are developing, about the health of Anna Hazare. Legality and politics are not mutually exclusive to the extent that lawyers are able to backseat constitutional and legal issues and package them as part of the political response. I don’t see any inconsistency or mutual exclusivity between the two

Vandita Mishra: But what is the single largest source of hostility to the government?

My sense is that people tend to think we are not with them in the fight against corruption. As time has gone by and as the debate is put in the correct perspective, it is clear that this is a choice between the right ends and the right means. People are tending more and more to agree with our perspective. The letter PM wrote and the public appeal made earlier to Anna Hazare to give up his fast were intended as a decisive signal to bring the national discourse back from an idiom of confrontation to an idiom of rational discourse and dialogue.

Maneesh Chhibber: Would you agree that Anna Hazare’s arrest was a wrong move?

I have already said that if I had been in-charge of the situation on the ground, I would not have sent Anna Hazare to Tihar jail. I think the right course would have been to notify a place like a guesthouse to detain him on a preventive basis. I think things moved too fast and these nuances got lost.

Dilip Bobb: What is your personal stand on the issues of the Lokpal covering PM, the bureaucracy and the judiciary?

Constitutionally, it is completely impermissible. How do you expect the government to consider these demands? On the judiciary: we have a constitutional procedure to discipline judges. As for PM, he has repeatedly said he has no problem being under the ambit of the Lokpal. But it is not as if this PM is the only PM under contemplation. What is under contemplation is the office of the PM, who has been described as the keystone of the Cabinet arch. And if the keystone is disturbed, the arch collapses. It is my personal view that no prime minister should be subjected to a system of inquiry or prosecution where immediately on the receipt of a complaint, the entire regime is triggered. It is not the absence of laws that have prevented prosecution of PMs. We have had two PMs who have been prosecuted even without the Lokpal. We are being unfair to those honest officers in the government who actually prosecuted PMs and former PMs. It is not because of the absence of laws that corruption in the country is growing, It is because of the general decline in the moral fibre of most people that the country is going down.

Maneesh Chhibber: Very recently, the government removed CBI from under the RTI. Is that probity?

I believe the reason for keeping CBI out of RTI is ensure the integrity of the investigation as the accused can use RTI to get information about what stage the investigation is at, which might destroy the integrity of the investigation.

Raj Kamal Jha: This is hypothetical but if the same debate had happened under UPA-I, do you think you would have been on a stronger wicket than UPA-II under the shadow of CWG and 2G? What role has that shadow played in the current discourse?

I do agree that the atmosphere created in the country with allegations related to 2G and other issues have had an impact, consciously or unconsciously, on the sentiments of the people, and the sentiments of the lawmakers, even the judiciary. In fact, we are all impacted at a certain level–and rationality and objectivity sometimes become the casualty. I saw this phenomenon in the indictment of Justice Sen.

Coomi Kapoor: Did the prevailing atmosphere influence the views of parliamentarians who were not in favour of Justice Sen’s impeachment?

I believe, as a lawyer and not as a parliamentarian, that in a criminal case, two views are possible and if the prosecution has not proved its point to the hilt, the benefit of the doubt must go to the accused. That is not to say that the same principle applies when we have debates on issues such as this in Parliament. The parliamentarians, in their collective wisdom, took a view that the judgment would advance the cause of substantive justice for a cause.

Kaushal Shroff: The Jan Lokpal Bill states that seven members should approve any investigation against the PM, of whom at least four would be judicial members. Wouldn’t they understand the gravity of the issue involved and the repercussions of investigating a PM?

The fundamental issue is the environment in which our democracy operates. The imminent possibility of a mala fide prosecution or investigation into the conduct of the prime minister in the discharge of his extremely critical duties can have the effect of destabilising governments. This is the view that is taken by those who dispute the necessity of the PM in the Lokpal. There are others who believe that there are sufficient safeguards to see an abuse of the law doesn’t take place. If Parliament in its wisdom decides to put the PM under the Lokpal, so be it. But there are two strong views and somebody has to decide which view must prevail. Which is that instrumentality in the scheme of our constitutional order which takes the final call? Parliament, in its collective judgment, where all shades of political opinion are reflected.

Vandita Mishra: Some people in your party say Rahul Gandhi should step into the Anna Hazare negotiations.

Rahul Gandhi enjoys a preeminent position in the party. He has a very incisive instinct on many issues. His counsel is always available to the party. As the Congress general secretary, he doesn’t have to ask anyone before intervening. For all you know, he may be involved in giving his advice in the manner he deems fit. It is his call how to intervene, when to intervene and on what issues to intervene.

Sourabh Jyoti Sharma: Transparency International Report 2010 says the judiciary is the second most corrupt institution in India after the police. Do you want to bring a stronger Judicial Accountability Bill in Parliament?

The Judicial Accountability Bill will be brought before Parliament. The government remains committed to it. There is a broad consensus on it. We need to ensure that there is an adequate mechanism to deal with allegations of lack of probity in the judiciary.

Sourabh Jyoti Sharma: What is your view, as a lawyer, on the collegium system of judicial appointment?

On judicial appointments, the experience has been mixed. I don’t think the collegium system has always achieved the desired results.

Unni Rajen Shanker: Many people are talking for the government in the media. Are you being briefed before you talk?

There is so much information on the issues at hand, we almost drink, eat and breathe these issues. The senior people who go on TV channels do have their own perception of what is required to be said and if there is a doubt in their minds, they are always free to seek clarification.

Vandita Mishra: What is the feedback your parliamentarians are getting from the ground, from outside big cities like Delhi? Do they face the same outrage or is there a distinction to be made?

Nobody disputes that the issue of corruption has caught the imagination of the country. The point of contestation is how does the nation together move forward in a direction that will minimize the scourge of corruption and show that the fundamentals of our body politic are not constantly being eroded by this menace. It is a great tragedy that the current UPA leadership of Sonia Gandhi and Manmohan Singh known for their deep commitment to probity in public life should have to bear the brunt in a very unjust and a very unfair manner just because an atmosphere in the country has been created where the responsibility for all that is wrong lies with the government. Look at the series of initiatives the government has taken on corruption: has anyone else take such corrective measures?

When did a serving minister go to jail, when did we send the top bureaucrats to jail? It is said this was done because Supreme Court wanted it to be done. Who went to Supreme Court and asked, through CBI that the Supreme Court monitor the investigations so that the people of India should not think anybody was being protected? We must at least be given credit for vigorously pursuing the cases of corruption. The proof of the pudding is in its eating. Judge me not by what I say but by what I do and this government has taken conscious, purposive and strong action where strong prima facie cases of corruption have been an issue. One more thing; these are the people who have been behind bars for the last several months and whose bail applications have not been granted. As a lawyer I ask myself, is bail the rule and jail an exception or jail the rule and bail an exception? As early as 1977, Justice Krishna Iyer said bail is the rule as it subserves the cause personal liberty and jail in an exception. You must jail only those people who are hardened criminals who can pervert and thwart the course of justice. I sometimes wonder whether someone can be denied liberty merely because the atmosphere is in favour of hanging those without convicting them. At another level, there are proposals that nobody can contest an election if there is a charge of a criminal offense against him. It is said this is the best way to eliminate criminals from politics.

But it is a dangerous path to follow. We have a great law and a great legal architecture but we also know that laws are abused. It is easy to have a false charge against someone in a mofussil town. Years of reputation built in public affairs, a man’s political career can be destroyed. The answer to the criminalization of politics is not in riding roughshod over fundamental principles that are intended to safeguard your liberties and your inalienable rights embedded in the Constitution. Let us not tinker with the fundamental principles of our republic on account of impulses of the moment. All constitutions are designed to secure the nation against intensities of the momentary impulses. If you tinker with the Constitution, you will never be able to restore its integrity.

Vandita Mishra: The burden of your argument is that there is an atmosphere in the country and the government is an unfortunate victim of that atmospehere. Would you not admit to a single mistake the government has made in contributing to this atmosphere? Has the absence of Sonia Gandhi made a difference?

Sonia Gandhi’s absence is deeply felt at all critical moments and even otherwise both in the party and in the government. Her presence, her guidance, her sage counsel and advice has been a great source of strength to the UPA government and Congress. I will be the last person to say this government, or any government, is infallible. There could be a bona fide error of judgment like sending Anna Hazare to Tihar Jail. Governments do make mistakes but as long as they are bona fide and are redressed and corrected, I think the benefit of doubt must remain with the government.

People throw out governments when they don’t find their explanations convincing. The choice is not between a perfect government and an imperfect government, the choice is between a bona fide governance and misgovernance.

Transcribed by Chinki Sinha & Geeta Gupta

The Collegium Controversy

Supreme Court of India

KRISHNADAS RAJAGOPAL IN THE INDIAN EXPRESS

What is the collegium system?

It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution.

What does the Constitution actually prescribe?

Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.

Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.

How and when did the other system evolve?

The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”. The S P Gupta case (December 30, 1981) is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years.

How did the judiciary come to get primacy?

On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case — the “Second Judges Case”. This was what ushered in the collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments. It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.”

How final was this?

Justice Verma’s majority judgment saw dissent within the bench itself on the individual role of the CJI. In a total of five judgments delivered in the Second Judges case, Justice Verma spoke for only himself and four other judges. Justice Pandian and Justice Kuldip Singh went on to write individual judgments supporting the majority view. But Justice Ahmadi had dissented and Justice Punchhi took the view that the CJI need not restrict himself to just two judges (as mentioned in the ruling) and can consult any number of judges if he wants to, or none at all.

For the next five years, there was confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions without consulting two colleagues. Besides, the President became only an approver.

What was done to deal with the confusion?

In 1998, President K R Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments/transfers; this came to be the present form of the collegium (see box).

Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of the highest judiciary over the executive. This was the “Third Judges Case”.

What are the arguments against the collegium system?

Experts point to systemic errors such as:

The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees;

A closed-door affair without a formal and transparent system;

The limitation of the collegium’s field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.

What moves were taken to correct these?

The Law Commission in its 214th Report on ‘Proposal for Reconsideration of Judges cases I, II and III’ recommended two solutions:

To seek a reconsideration of the three judgments before the Supreme Court.

A law to restore the primacy of the Chief Justice of India and the power of the executive to make appointments.

What is the suggested alternative to the collegium?

A National Judicial Commission remains a proposal. The Constitution (98th Amendment) Bill was introduced in the Lok Sabha by the NDA government in 2003. It provided for the constitution of an NJC to be chaired by the CJI and with two of the senior-most judges of the Supreme Court as its members. The Union Law Minister would be a member along with an eminent citizen to be nominated by the President in consultation with the Prime Minister. The Commission would decide the appointment and transfer of judges and probe cases of misconduct by judges, including those from the highest judiciary.

SC guidelines on appointments

1 The term “consultation” with the Chief Justice of India in Articles 124 (2), 217(1) and 222 (1) requires consultation with a plurality of judges in the formation of the opinion of the CJI. The sole, individual opinion of the CJI does not constitute consultation.

2 The CJI can only make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the four senior-most judges of the Supreme Court. As far as the High Courts are concerned, the recommendation must be made in consultation with the two senior-most judges of the Supreme Court.

3 Strong cogent reasons do not have to be recorded as justification for a departure from the order of seniority in respect of each senior judge who has been passed over. What has to be recorded is the “positive reason for the recommendation”.

4 The views of the judges consulted should be in writing and should be conveyed to the Government of India by the CJI along with his views to the extent set out in the body of this opinion.

5 The CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations.

6 Recommendations by the CJI without [such compliance] are not binding upon the government.

7 The transfer of High Court judges is judicially reviewable only if the CJI took the decision without consulting the other four judges in the Supreme Court collegium, or if the views of the Chief Justices of both High Courts [involved in the transfer] are not obtained.

8 The CJI is not entitled to act solely in his individual capacity, without consultation with other judges of the Supreme Court, in respect of materials and information conveyed by the Government for non-appointment of a judge recommended for appointment.

9 The CJI can consult any of his colleagues on the appointment of a HC judge to the Supreme Court or transfer of a puisne judge. The consultation need not be limited to colleagues who have occupied the office of a judge or Chief Justice of that particular High Court .

Why is it so hard to budge a judge?

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

INDIAN EXPRESS 

 It was assumed by our Constitution makers that once a judicial committee finds a judge guilty of misbehaviour, Parliament would automatically endorse the finding of the judicial committee and pass the appropriate address to the president with the requisite majority. That was the assumption underlying this provision. Unfortunately, Parliament did not build up a convention on these lines. Therefore, the procedure became difficult and doubtful.

In former Supreme Court judge Justice V. Ramaswami’s case in 1993, the ruling party, the Congress under P.V. Narasimha Rao, did not issue a whip to the members and in fact, told them to abstain from the vote. Ramawami’s supporters prevailed on the party, and this abstention by the Congress defeated the motion, which set a very bad precedent, and earned a bad name for the party. That event has encouraged some judges to take a very rigid stand: not to resign even when serious allegations are made against them by responsible persons. It has had a negative impact on the minds of these people, as errant judges assume nothing will happen to them since impeachment is such a difficult procedure. This has been a serious setback to the independence and the credibility of the judiciary.

Thereafter, there have been a number of cases involving judges of against whom serious allegations of misconduct have been made. There have been cases where criminal prosecution was also initiated. Shamit Mukherjee of the Delhi high court and Nirmal Yadav of the Punjab and Haryana high court are examples. There have also been some cases where the Chief Justice of India did not give his permission to proceed; such permission is required in law. K. Veeraswamy, a former chief justice of the Madras high court, was prosecuted for having disproportionate assets. The real point is that because impeachment is difficult and uncertain, some judges behave irresponsibly.

In the Justice Soumitra Sen case currently before Parliament, a committee was set up, consisting of a sitting judge of the Supreme Court, Justice B. Sudershan Reddy, an eminent lawyer like F.S. Nariman, an eminent judge like Chief Justice Mukul Mudgal of the Punjab and Haryana high court. That committee found this gentleman guilty of retaining the monies of a client that he received as an advocate-receiver, and of holding on to that money in his account even after becoming a judge of the high court. He returned the money only later, after the high court ordered him to do so. This was considered to be misbehaviour on the part of the judge.

Instead of accepting the findings given by an impartial committee, Sen has chosen to challenge the findings in Parliament. This isn’t a healthy development. The Rajya Sabha has since voted for his impeachment. Now it all depends on the vote in the Lok Sabha. According to me, in principle, it is not a wise decision to make MPs the custodians of judicial ethics and judicial conduct. If they are to apply their own standards of probity to the misbehaviour of judges, they might find it difficult to find him guilty of serious misbehaviour warranting removal. Therefore, there should be another method for easier removal of a judge found to be guilty of doubtful integrity.

I suggest an amendment of the Constitution to incorporate a provision permitting the immediate removal of a judge who, in the opinion of the collegium of the Supreme Court is a person of doubtful integrity and doesn’t deserve to remain in office. He can be paid some compensation in lieu of the forsaking of service, instead of having to suffer him on the bench with doubts about his honesty in the minds of the public. The judicial system cannot afford to have such black sheep on its rolls.

If such a provision is made, it can be applied to public servants found to be of doubtful integrity. Proving corruption in a court of law is difficult because the bribe-giver and -receiver will thwart all attempts to prosecute them. The same problem arises with departmental enquiries. Even in those rare cases where prosecution succeeds, it takes a long time and by the time the decision comes, the judiciary would have suffered an irreparable loss. On the other hand, if such people are removed forthwith, on payment of some compensation, the system would be much healthier and will enjoy greater credibility.

Those inclined to accept gratification will also be under check for fear of removal forthwith if discovered. It will have a salutary effect even on the existing judges and will instill fear in their minds, so that they do not resort to corrupt ways, and remain honest. Of all the institutions, the judiciary especially cannot afford to have corrupt persons in its ranks. Therefore I strongly recommend such a provision being made in the Constitution. In that case, the impeachment procedure would become redundant.

There is a judicial accountability bill in the works, but well intentioned as it is, it does not go far enough, and does not have adequate teeth to deal with the problem effectively. There should be a provision for the suspension of a judge when complaints against him are being investigated. At the same time, we must take care to ensure that disgruntled litigants do not level false accusations against judges who might have decided against them. We have to protect judges from such baseless complaints. The judicial accountability bill will have the unintended effect of allowing false complaints to be made, which is not conducive to the independence of the judiciary. There is no provision for the speedy removal of an errant judge.

The Supreme Court has been trying an in-house procedure, but it is not a transparent one. There is a feeling that cases are pushed under the carpet for fear of adverse publicity. Therefore, there is a clear need for a transparent mechanism of accountability for judges. Even in the matter of declaration of assets in public, there was hesitation within the judiciary. It is necessary to ensure transparency in these matters in order to sustain the confidence of the people in the system.

The writer is a senior advocate in the Supreme Court, and an expert in constitutional law

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RS passes Sen impeachment motion and questions how judges appoint themselves

Parliament building in New Delhi (Sansad Bhava...

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INDIAN EXPRESS

The Rajya Sabha today passed by an overwhelming majority a motion to impeach Calcutta High Court judge Justice Soumitra Sen on charges of misappropriation of large sums of money and making false statements and misrepresenting facts of that misappropriation. And, in the process, the Elders used the opportunity to pose a question to the higher judiciary: how did somebody like Sen, whose conduct as a lawyer was highly questionable, become a judge in the first place?

That question wasn’t purely rhetorical — speaker after speaker during the four-hour debate got up to question the current collegium system of appointment. And many MPs, cutting across party lines, criticised what they called the growing tendency of the higher judiciary to step into the domain of the executive and the legislature.

While 189 members voted in favour of the motion to impeach the 53-year-old judge, 17 members, including 16 from the BSP, voted against it. The BSP was the only party that came out in support of the judge.

Contacted after the vote, Sen told The Indian Express: “I am extremely disappointed… There is no question of my resigning. I shall fight till the end and explore all legal remedies. I am honest on this issue and will continue to fight my case.”

Not many had bought this case. Continuing from where he left yesterday, Leader of the Opposition in the Rajya Sabha Arun Jaitley said that the time had come to revisit the procedure for appointment of judges, strongly favouring a National Judicial Commission (NJC) to replace the collegium system. “The system of judges alone appointing judges must now change. India needs a National Judicial Commission to appoint judges,” Jaitley said. He said the NJC should comprise representatives of the judiciary and executive, as well as prominent citizens.

“Both the pre-1993 and the post-1993 system had several handicaps. The best in this country are not willing to become judges. We have to seriously consider why… We should seriously consider a system which is being debated about setting up a National Judicial Commission… Public interest has to be protected in the matter of appointment of competent judges, in the matter of appointment of judges who are men of integrity, men of scholarship. Not only this, the criteria for appointment today does not exist. Is it today the discretion of the collegium? Collegium is also a system of sharing the spoils. When the High Courts recommend, members of the collegium share the spoils,” he said.

Talking about judicial over-reach, Jaitley said: “Separation of powers requires that every institution works in its own spheres. And if every institution works in its own spheres, it has to lay down the lakshman rekha of its own jurisdiction..And I must candidly confess that this attempt to encroach upon the lakshman rekha is neither coming from governments of the day in the Centre or the States nor is it coming from the Executive or the Legislature. Some serious sidestepping is coming from the judicial institution itself.”

He was also critical of the “increased trend” of the Executive giving jobs to judges after their retirement, saying, “There is a possibility of retirement-eve judgments getting influenced in search of post-retirement jobs…this is a serious threat to judicial independence.” Jaitley also reiterated that Sen had tried to mislead the House by presenting “serious falsehood” about the facts of his case in the House yesterday.

Taking a dig at the recent incidence of the apex court taking an ideological stand, Jaitley said, “Courts cannot say that this is neoliberalism which is creating problems. Courts cannot have an ideology. The only ideology that courts can have is commitment to the rule of law and what law is made by Parliament. Courts cannot tell this to the Government.”

Congress MP E M S Natchiappan said he “felt sorry” the way in which a serving judge had attacked the judiciary, especially a former CJI, in words that were never ever used in Parliament.

Springing a surprise, BSP MP Satish Chandra Mishra, who opposed the motion, said: “The findings have said there has only been diversion of funds and not misappropriation and secondly the finding of a single judge was dismissed by a division bench.” Therefore, he said, it could not be the ground for his removal.

In his address, noted lawyer Ram Jethmalani (BJP) launched a frontal attack on Sen, urging members not to be “misled” by his eloquence, which, he said, had nothing to do with morals. “This man did not deserve to be a judge. Not only should this judge go, other judges who do such things should not remain for even one more day…Let us set a good precedent today so that judges with similar bent of mind get a message that they cannot get away with such things.”

Jethmalani added that by paying the Rs 52 lakh, Justice Sen had bought for himself a reprieve from possible prosecution for criminal breach of trust that carries a prison term of 10 years to life.

CPM’s Sitaram Yechury, who moved the motions against Sen, also favoured setting up of a judicial commission.

D Raja (CPI) stressed the need for a judicial system based on probity and integrity. “A National Judicial Commission is required so that there could be accountability of judges,” he said, adding the nation is agitated over corruption in high places.

Tiruchi Siva (DMK) and Bharatkumar Raut (Shiv Sena) spoke on the need for judicial reforms and changes in the system to appoint judges.

Rajneeti Prasad (RJD) said the appointment system has to change and unless this happens, corruption in judiciary will remain, there will always be some appointments based on personal — rather than professional — considerations.

“When a peon is being appointed, he is interviewed. Set up a judicial commission…This way, good judges will be appointed. Otherwise, only children and kin of judges will become judges,” Prasad asserted.

Kumar Deepak Das (AGP) and H K Dua (Nom) also made similar demands. Ravi Shankar Prasad (BJP) said though the judiciary’s fight against corruption was welcome, the trend of judiciary “taking away power by appointing committees — MCD should work like this; this committee should work like this” was wrong. “May be, the authority is not functioning properly, but for that you are not the authority. Let the democratic process, the rule of the law and parliamentary accountability set right the course,” he said.

Immediately after the motion was passed, Prime Minister Manmohan Singh, who remained present in the House and voted, walked up to Yechury and Jaitley and congratulated them on the approval of the motion.

Now that the RS has passed the motion, the matter will go to the Lok Sabha, where, once again, Sen will get an opportunity to present his defence. However, the date when the Lok Sabha will debate the motion, will be decided early next week by the Business Advisory Committee.

http://www.indianexpress.com/news/rs-passes-sen-impeachment-motion-and-questions-how-judges-appoint-themselves/834089/0