Before answering that question, let us understand what exactly is being proposed in Jan Lokpal Bill, what its criticism is and what is our response thereto.
What is the problem?
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.
Despite overwhelming evidence of corruption available in public domain against many High Court and Supreme Court judges, permission to register FIR was granted in just one case by the Chief Justice of India in the last twenty years.
Therefore, the present system appears to have protected the corrupt judges and encouraged corruption in higher judiciary.
Proposal:
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.
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.
Criticism of this proposal and our response thereto:
It is being said that this would affect the independence of judiciary. We fail to understand how will it affect the independence of judiciary? The present system compromises the independence of judiciary by protecting the corrupt judges and by encouraging corruption. 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. That would act as a strong deterrence against corruption in higher judiciary. Would that not strengthen the independence of judiciary?
Another objection to inclusion of judiciary in Lokpal Bill is that this would tremendously increase the workload of Lokpal. This is also incorrect. 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.
Some people have said that judicial matters are very technical. Therefore, only people from judiciary should deal with complaints against judges. 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. Giving and accepting bribe is a criminal offence. There is no technicality involved in that.
But the proceedings for impeachment of judges is already 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.
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.
But why not bring judicial corruption within the ambit of Judicial Accountability Bill?
Firstly, Judicial Accountability Bill (JAB) does not talk of bribery by the judges. It only talks of “misbehavior”. National Judicial Commission sought to be created through JAB will not have the police and investigative powers and machinery to deal with criminal complaints of bribery, which Lokpal would have. Jan Lokpal talks of criminal misconduct. Therefore, the two bills complement each other.
Secondly, it is being alleged that Lokpal Bill will compromise judicial independence. If so, how will JAB not compromise judicial independence? The National Judicial Commission (NJC) sought to be created through Judicial Accountability Bill is similar to the Lokpal (barring their names). How is NJC more constitutional than Lokpal? Just because NJC will have some judges? But then even Lokpal will have four judges. Therefore, isn’t the public being misled by saying that the independence of judiciary will be protected if judicial corruption were addressed through JAB rather than by Lokpal?
Thirdly, JAB drafted by the government is a very bad law. It has been criticized by everyone. Rather than reduce corruption, it would end up protecting the corrupt judges. The law ought to be changed drastically to make it effective.
Fourtly, even if judicial corruption were included in JAB, it is not clear when would an effective JAB become a reality? Should we wait endlessly till Jab became a reality? We have absolutely no problem in judicial corruption being included in JAB if JAB were made strong and effective and if JAB were also passed along with Lokpal Bill.
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