Should judiciary be brought under the purview of the Jan Lokpal Bill ?

        This appears to be a common question among those who are following the Lokpal bill related discussions. Let us first understand what exactly is being proposed in the Jan Lokpal Bill, what its critics are concerned about and our response to these criticisms. The intent of this write up is to get the facts straight so people can draw their own conclusions.

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.

         Historically, even those Chief Justices, who have been well known for their honesty, have not granted these 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 grant 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.

Proposal:

       
      A perception that the judiciary is being brought under the control of Jan Lokpal has unfortunately been created. This is a myth that is being falsely propagated and it 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 wing 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.

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 interfere with the 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?	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 National Judicial Commission sought to be created through Judicial Accountability Bill 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