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Weighing The Scales by Anuradha Raman

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
 
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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?