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Jurisdiction of Lokpal

Jurisdiction of Jan Lokpal Bill

a. High Court and Supreme Court Judges

(i) Removal of a Supreme Court or High Court Judge
Present system: Under the present system, a judge can be removed for misconduct by the process of impeachment specified in the Constitution of India.
Proposed system: Jan Lokpal Bill does not propose to change this system.


(ii) Investigating Cases of Corruption of Supreme Court or High Court Judges
Present system: Today, if there is an allegation of corruption against any Supreme Court (SC) or High Court (HC) judge, an FIR cannot be registered and investigations cannot be started into those allegations without the permission of the Chief Justice of India (CJI). Experience shows that Chief Justices have hesitated in giving permissions, despite overwhelming evidence of corruption being presented against any judge.
Even those Chief Justices, who have been well known for their honesty, did not give permissions. For instance, Mr P Chidambaram sought permission to register an FIR against Justice Sen Gupta of Kolkatta High Court. Permission was sought from the then Chief Justice of India, Justice Venkatachaliah, who is very well known for his integrity. However, Justice Venkatachaliah did not give permission. Was the evidence against Justice Sen Gupta strong enough? The strength of the evidence can be gauged from the fact that Justice Sen Gupta was raided and arrested soon after he retired because after retirement, permission of CJI was not required.
There are many more instances when permission for registration of FIR has been denied. Some such cases are mentioned below:

• Despite overwhelming evidence, request of the Campaign on Judicial Accountability (represented by Shanti Bhushan, Prashant bhushan, Ram jethmalani, Justice Rajender Sachhar, Indira jaisingh, Arvind Nigam etc) seeking permission to register an FIR against Justice Bhalla of Allahabad High Court is pending before the Chief Justice of India since 2006. 

• Similarly, the request of Campaign for Judicial Accountability and Judicial Reforms seeking to register FIR against Justice F I Rebello is pending since September 2010.
Therefore, the present system of seeking permission from the CJI to register an FIR against a judge of SC or HC appears to have protected the corrupt and encouraged corruption in higher judiciary.

Proposed system: An impression is being sought to be created that judiciary is being brought under the control of Jan Lokpal. This is completely incorrect.
What is being proposed is that the permission to register FIR against corruption of any judge should be granted by a seven member bench of Jan Lokpal (the bench may have majority of judicial members) rather than the Chief Justice of India. That is the only real difference in the system proposed in Jan Lokpal Bill and the existing system.

Post registration of an FIR, the police or CBI investigates and prosecutes (if a case is made out) under the existing system. Since we are proposing that the anti corruption branch of CBI would be merged into Jan Lokpal and would form the investigation and prosecution wing of Jan Lokpal, therefore, obviously the investigations and prosecution after registration of FIR is proposed to be done by the new investigation and prosecution wings of Lokpal. 

After completion of investigations, a full bench of Lokpal would decide whether to initiate prosecution or not. Lokpal will not have any powers to award punishment or to remove judges. The case would go to the normal courts for trial and punishment.
Therefore, effectively, there is just one change being proposed from the existing system – that rather than CJI giving permission to register FIR, a seven member bench of Lokpal should grant such permission.

(iii) Objections by some friends to the inclusion of higher judiciary within the purview of Jan Lokpal Bill



Critique of our proposal
Our response
This would affect the independence of judiciary.
How will it affect the independence of judiciary? We have greatest respect for our judiciary and we strongly stand for its independence. Most of the judges in higher judiciary are honest. However, a few of them bring bad name to the whole judiciary due to their wrongdoings. They ought to be identified and acted against. A system which effectively does that would strengthen the independence of judiciary and increase its credibility in the eyes of the public. Present system tends to protect the corrupt and encourages corruption. Therefore, the present system tends to lower the prestige and credibility of judiciary in the minds of the people and compromises its independence.
Jan Lokpal Bill seeks to create a system, which is independent of judiciary, to grant permission to register an FIR and initiate investigations against a judge.
This would tremendously increase the workload of Lokpal
There are less than 1000 SC and HC judges in our country. Justice S P Bharucha had once commented that less than 20% of higher judiciary is corrupt. Obviously, complaints will not come against all of them at the same time. But even if all complaints came together, there will be less than 200 complaints. That is a very small number and would not increase the workload of Lokpal in any manner.
Judicial matters are very technical. Therefore, Only people from judiciary should deal with complaints against judges.
Jan Lokpal Bill does not empower Lokpal to go into or question the judicial procedures or decisions of judiciary. It does not empower Lokpal to peep into professional (mis)conduct of judges. It only empowers them to grant permission to register an FIR against a judge against whom there are allegations of bribery. Giving and accepting bribe is a criminal offence. There is no technicality involved in that.
If that logic were accepted, then the income tax people would also say that income tax is a very complex subject and only people with income tax backgrounds should deal with allegations of corruption against income tax officers. There would be similar demands from politicians, customs officers and other sections of bureaucracy.
But the proceedings for impeachment of judges is already provided in the Constitution. Are you suggesting an amendment to the Constitution?
We are not seeking any amendment to the constitution. We are not even touching the provisions relating to impeachment of judges as provided in the constitution. We are not even talking of impeachment. All that we are saying is that the power to grant permission to register FIR against a judge should be given to a seven member bench of Lokpal rather than the CJI.
What will happen to the Judicial Accountability Bill presented by the Government?
Unfortunately, the Judicial Standards and Accountability Bill presented by the Government does not inspire confidence that it would make judiciary accountable in any manner. This Bill seems to be driven by the belief that the judiciary must be essentially accountable to itself though it seeks to induct some people from the executive in the bodies as well. Thus the judicial oversight committee, which would receive complaints against judges, would be a body comprising of the former Chief Justice of India, a sitting judge of the Supreme Court, a sitting judge of the High Court, the Attorney General and one "eminent person" nominated by the President. This means three persons in the judiciary, including two sitting judges, and two persons from the executive. Moreover three out of the five members are ex officio, being very busy in their official work. The oversight committee is therefore neither independent of the government nor the judiciary. Moreover they can hardly devote adequate time to the task of looking at complaints against all judges of the higher judiciary. Even worse is a provision in the Bill requiring a complaint to be sent to the scrutiny committee consisting of two sitting judges and a retired Chief Justice of the same court. This will make it virtually impossible to the scrutiny committee to give an unbiased report against a person who is, and has been, a professional colleague and brother judge on the bench at the same court.
Besides, Judicial Accountability Bill does not talk of bribery by the judges. It only talks of professional misconduct. Jan Lokpal talks of criminal misconduct. Therefore, the two bills complement each other. The Judicial oversight committee will not have the police and investigative powers and machinery to deal with criminal complaints of bribery. It could be done only by Lokpal.
Complaints against Lokpal members will go to Supreme Court and those against Supreme Court judges will go to Lokpal. Would that not create some kind of circularity?
Such circularity is a part of internal checks and balances at top levels in any democracy. For instance, Supreme Court keeps a check on legislature and Executive and the Legislature has powers to legislate on judicial matters.
If there is a complaint against a Supreme Court judge and a Lokpal member at the same time, then obviously, the accused judge or the accused member will recuse himself from the benches.
If ever such an eventuality happens, the transparency of proceedings in the two institutions will keep a check on the possibility of any misuse. The hearings at the two places will be open for the public and media.
Won’t we need to amend the constitution to allow a seven member bench of Lokpal to give permission rather than the CJI under the existing system?
No, we won’t need any amendment. There is no provision either in the constitution or in any law which empowers the CJI to give permission before registration of an FIR against any judge. Such a system was created by the Supreme Court through an order in Veeraswamy case, in which the SC made it mandatory that permission would need to be sought before registration of an FIR against any judge. Interestingly, no frivolous FIR had ever been filed against any judge before that judgement and such a judgement was completely uncalled for.

b. Elected politicians including ministers and Prime Minister

(i) For their conduct outside parliament
If any politician indulges in any corruption outside Parliament, he could be investigated against by the Lokpal or Lokayukta on either a complaint from any citizen or suo moto. After completion of investigations, if a case is made out, Lokpal or Lokayukta shall file prosecution in court. The court will have to complete its trial and pass orders within one year.

In the case of ministers including Prime Minister and Chief Minister, the permission for starting investigations or initiating prosecution will have to be given by a full bench (seven members) of Lokpal or Lokayukta.

In the case of ministers barring Prime Minister, if a case is made out, Lokpal or Lokayukta may recommend removal of the minister to the Governor or President. Such recommendation will also have to be made by a full bench of Lokpal or Lokayukta.

(ii) For their conduct inside Parliament
If any politician indulges in any corruption inside Parliament, then either suo moto or on a complaint from anyone, the Chairperson of respective House shall forward the case to the Ethics Committee. If Ethics Committee so recommends, the Chairperson shall forward the complaint to Lokpal or Lokayukta for necessary investigations. Lokpal shall be responsible for conducting investigations and shall submit its report to the Chairperson, who will then present it in that House for necessary decision.

c. Bureaucrats

Lokpal may, either suo moto or on receipt of a complaint, may initiate investigations against any bureaucrat. After completion of investigations, if a case is made out, Lokpal or Lokayukta may file prosecution in court. The court will have to complete its trial and pass orders within one year.

In the case of bureaucrats, after completion of investigations, if a case is made out, Lokpal or Lokayukta will have the powers to recommend departmental penalties including dismissal. Such recommendations shall be binding on the government. However, in imposing such penalties, the evidence would be examined on the basis of preponderance of probabilities. If the accused are of the level of Joint Secretary or above, such penalties will be imposed by a bench of members of Lokpal or Lokayukta after giving an opportunity of being heard to all parties. For others, the penalties will be imposed by a bench of senior officers of Lokpa or Lokayukta. These orders could be appealed against in High Court.

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