THE LAWFILE

Posts Tagged ‘Lokpal

14 Bills (11 in the Lok Sabha and 3 in the Rajya Sabha) introduced during the Monsoon Session

leave a comment »

A representation of the Lion Capital of Ashoka...

Image via Wikipedia

LAXMAN PRASAD IN LAWYERSCLUBINDIA

The Lok Sabha passes 13 Bills and the Rajya Sabha passes 09 Bills during the session

 The Monsoon Session, 2011 of Parliament which commenced on Monday, the 1st of August, 2011, concluded on Thursday, the 8th of September, 2011.  The Session provided 26 sittings spread over a period of 39 days.

During the Session, Supplementary Demands for Grants (General) for 2011-12 and the related Appropriation Bill, was discussed and passed by the Lok Sabha. Thereafter, the Rajya Sabha considered and returned the Appropriation Bill.

In Lok Sabha, Motion regarding price rise, calling upon the Government “to take immediate effective steps to check inflation that will give relief to the common man”, moved by Shri Yashwant Sinha was discussed and adopted without voting.

One Bill replacing the Ordinance, namely, the Indian Medical Council (Amendment) Ordinance, 2011 which was promulgated by the President, was considered and passed by both the Houses of Parliament during the Session. Another Ordinance, namely, the Indian Institute of Information Technology, Design and Manufacturing, Kancheepuram Ordinance, 2011 which was promulgated by the President, could not be replaced by an Act of Parliament.

In the Lok Sabha, five Short Duration Discussions under Rule 193 were held on (i)Commonwealth Games, 2010; (ii) Relief and resettlement of Tamils in Sri Lanka; (iii) Setting up of Lokpal and certain events that took place on 16.08.2011 in Delhi; (iv) Widespread corruption in the country; and (v) issues relating to setting up of a Lok Pal.

In the Rajya Sabha, four Short Duration Discussions under Rule 176 were held on (i) Growing incidents of terrorism in the country; (ii) Commonwealth Games, 2010; (iii) Growing incidence corruption in the country; and (iv) Problems being faced by Sri Lankan Tamils. Besides, clarifications were sought on the statement made by Prime Minister on setting up of a Lok Pal.

Besides, 2 Calling Attentions in Lok Sabha and one Calling Attention in Rajya Sabha were discussed.  One Half-an-hour discussion each in Lok Sabha and Rajya Sabha was also discussed.

During the Session, 14 Bills (11 in the Lok Sabha and 3 in the Rajya Sabha) were introduced.  The Lok Sabha passed 13 Bills and the Rajya Sabha passed 09 Bills during the session. A list containing the titles of the Bills introduced, and, considered and passed during the Session is given below:

 

 

LEGISLATIVE BUSINESS TRANSACTED DURING EIGHTH SESSEION OF FIFTEENTH LOK SABHA AND 223rd SESSION OF RAJYA SABHA

(MONSOON SESSION, 2011)

 

I – BILLS INTRODUCED   IN LOK SABHA

 

1.       The Indian Medical Council (Amendment) Bill, 2011

2.       The Lokpal Bill, 2011

3.       The Indian Institute of Information Technology, Design and Manufacturing, Kancheepuram Bill, 2011

4.       The Appropriation (No.3) Bill, 2011

5.       The Damodar Valley Corporation (Amendment) Bill, 2011

6.       The Customs (Amendment and Validation), Bill, 2011

7.       The Benami Transactions (Prohibition) Bill, 2011

8.       The National Academic Depository Bill, 2011

9.       The Land Acquisition, Rehabilitation and Resettlement Bill, 2011

10.   The Nuclear Safety Regulatory Authority Bill, 2011

11.   The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2011

 

II – BILLS PASSED BY LOK SABHA

 

1.       The Appropriation (No.3) Bill, 2011

2.       The State Bank of India (Subsidiary Banks Laws) Amendment Bill, 2009

3.       The Transplantation of Human Organs (Amendment) Bill, 2009

4.       The National Institutes of Technology (Amendment) Bill, 2010

5.       The Customs (Amendment and Validation) Bill, 2011

6.       The Indian Medical Council (Amendment) Bill, 2011

7.       The Jawaharlal Institute of Post Graduate Medical Education and Research, Puducherry (Amendment) Bill, 2011

8.       The Indian Institute of Information Technology, Design and Manufacturing, Kancheepuram Bill, 2011

9.       The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2011

10.   The National Council for Teacher Education (Amendment) Bill, 2011

11.   The Academy of Scientific and Innovative Research Bill, 2010

12.   The Orissa (Alteration of Name) Bill, 2011

13.   The Constitution (One Hundred and Thirteenth Amendment) Bill, 2011

 

III – BILLS INTRODUCED  IN RAJYA SABHA

1.       The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Bill, 2011

2.       The Border Security Force (Amendment) Bill, 2011

3.       The Administrators-General (Amendment) Bill, 2011

 

IV – BILLS PASSED BY RAJYA SABHA

1.       The Jawaharlal Institute of Post Graduate Medical Education and Research, Puducherry (Amendment) Bill, 2010

2.       The Appropriation (No.3) Bill, 2011

3.       The Coinage Bill, 2011

4.       The Juvenile Justice (Care and Protection of Children ) Amendment Bill, 2010

5.       The National Council for Teacher Education (Amendment) Bill, 2010

6.       The State Bank of India (Subsidiary Banks Laws) Amendment Bill, 2011

7.       The Transplantation of Human Organs (Amendment) Bill, 2011

8.       The Indian Medical Council (Amendment) Bill, 2011

9.       The Customs (Amendment and Validation) Bill, 2011

 

ORIGIN:  http://www.lawyersclubindia.com/news/14-Bills-11-in-the-Lok-Sabha-and-3-in-the-Rajya-Sabha-introduced-during-the-Monsoon-Session-13334.asputm_source=newsletter&utm_content=news&utm_medium=email&utm_campaign=nl_15_09_2011

Advertisements

Jan Lokpal Bill and Parliament

with 2 comments

SHANTI BHUSHAN IN THE HINDU

Social activist Anna Hazare having a word with his team members Prashant Bhushan and Shanti Bhushan during the fast for Jan Lokpal Bill at Ramlila Maidan in New Delhi.

Is the Bill within the legislative competence of Parliament? Yes.

All provisions in Anna Hazare’s Jan Lokpal Bill are within the legislative competence of Parliament, including the provisions relating to Lokayuktas in the States. Some confusion is being spread in the media that Parliament cannot enact all the provisions of the Jan Lokpal Bill, particularly those relating to the Lokayuktas in the States, a law for which will have to be enacted by the State Legislatures themselves. Any constitutional jurist would confirm that there is no substance in this impression and that Parliament is fully competent to enact all the provisions of the Jan Lokpal Bill.

Parliament can enact any law if the “pith and substance” of that law is covered by any entry in the Union List or any entry in the Concurrent List. Entry 97 of the Union List is as follows: “Any other matter not enumerated in list 2 or list 3 including any tax not mentioned in either of those lists.”

The effect of this is that unless the pith and substance of the Jan Lokpal Bill falls squarely under any of the entries in the State List, Parliament cannot be denied the legislative competence to enact the provisions of the Jan Lokpal Bill. Even a student of law would tell you that the pith and substance of the Jan Lokpal Bill does not fall under any entry in the State list.

One of the entries in the Union List is entry No.14: “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.” Article 253 provides that “Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” The effect of Article 253 is that even if the pith and substance of an Act is squarely covered by an entry in the State List, even then if the enactment is for implementing a U.N. Convention, Parliament would still be competent to enact the legislation.

As the statement of objects and reasons of the Jan Lokpal Bill would show, the object of the Jan Lokpal Bill is to implement the United Nations Convention on Corruption, which has already been ratified by India (http://www.unodc.org/unodc/en/treaties/CAC/index.html).

The definition of “public official” in the U.N. Convention includes any person holding a legislative, executive, administrative, or judicial office, whether appointed or elected. This is quite similar to the definition of “public servant” in the Prevention of Corruption Act, 1988, enacted by India’s Parliament, which covers all Ministers including the Prime Minister, all judges of the High Court and the Supreme Court as well as all elected Members of Parliament and State Legislatures. Incidentally, it may be mentioned that the Prevention of Corruption Act was enacted by Parliament and not by any State Legislature, even though it is applicable not only to Central government servants but also to servants of the State governments. The main object of the Jan Lokpal Bill is to set up an independent authority as required by the U.N. Convention to investigate offences of corruption by all public servants covered by the Prevention of Corruption Act, 1988.

Entry 1 of the Concurrent List refers to criminal law, including all matters included in the Indian Penal Code. As bribery and corruption were covered by the Indian Penal Code, Parliament had full competence to enact the Prevention of Corruption Act.

Entry 2 of the Concurrent List relates to criminal procedure, including all matters included in the Code of Criminal Procedure. Since the investigation of bribery and corruption was included in the Code of Criminal Procedure, Parliament is fully competent to enact a law to provide for alternative methods of investigation of offences under the Prevention of Corruption Act.

Article 8 (2) of the U.N. Convention requires each state that is a party to the Convention to apply, within its own institutional and legal systems, codes or standards of conduct for the correct, honourable, and proper performance of public functions.

Article 8 (5) further requires the states to establish systems requiring public officials to make declarations regarding their outside activities, employment, investments, assets, and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.

Article 8 (6) further requires the states to take disciplinary or other measures against public officials who violate the codes or standards established in accordance with the convention.

Article 12 (2) requires the taking of measures for preventing the misuse of procedures regulating private entities, including procedures regarding subsidies and licences granted by public authorities for commercial activities. It further requires the imposition of restrictions for a reasonable period of time on the professional activities of former public officials after their resignation or retirement, where such activities of employment relate directly to the functions held or supervised by those public officials during their tenure.

Article 34 of the Convention requires the states to consider corruption a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument, or take any other remedial action. It would be crystal clear to any constitutional jurist that even if the Jan Lokpal Bill had not been for the purpose of implementing the U.N. Convention, all its provisions would be squarely covered by the Union List and the Concurrent List.

While one can understand the anxiety of political parties to somehow attempt to dilute the provisions of the Jan Lokpal Bill by reducing its coverage or to weaken it, they owe it to the people of India not to mislead the gullible people that Parliament is not competent to enact the provisions contained in Anna Hazare’s Jan Lokpal Bill. Even the claim that at the least the States are required to be consulted has no basis at all. The Constitution-makers had foreseen that in a federal or quasi-federal country, the States’ views had to be taken into consideration by Parliament when enacting a law. They had, therefore, provided for the Council of States and a Bill cannot be enacted by Parliament unless it is passed both in the Lok Sabha and the Rajya Sabha. The constitution of the Rajya Sabha provides that each State elects its representatives to this House. Thus all States are represented in the Rajya Sabha. The MPs in the Rajya Sabha are there to represent the views of the states on any Bill that comes before it and there is thus an inbuilt mechanism in the Constitution itself to provide for taking into consideration the views of the States on a Bill that is being enacted by Parliament.

(Shanti Bhushan, a constitutional expert, is a former Union Law Minister and member of the Joint Drafting Committee on the Lokpal Bill.)

Origin: http://www.thehindu.com/opinion/lead/article2430078.ece?homepage=true

Teaching a hard lesson

with 3 comments

SUDIPTO MUNDLE in TOI

Shehla Masood was killed in Bhopal recently, yet another RTI activist who lost her life in the battle against corruption. The Lokayukta report has brought down the chief minister in Karnataka. A high court judge is being impeached in Parliament. The Comptroller and Auditor General and the Supreme Court are in hot pursuit of mega scams. The CBI has charge-sheeted and locked up top executive honchos, MPs, even a cabinet minister. India is at war against corruption.

Now we have Team Anna’s much celebrated victory. His hunger strike and arrest galvanised a whole nation. Nothing like this had been seen since the freedom movement led by Gandhi, except perhaps the JP movement. Cong-ress leaders were clearly shocked. As the rallies swelled and Team Anna grew more stubborn, the party swung from hard line to soft line to hard line again.

Finally, it was Prime Minister Manmohan Singh – much vilified in recent times even by his well-wishers for neither leading nor resigning, and presiding over a corrupt regime – who did the right thing. At his instance, alternative proposals for the Lokpal Bill were discussed in Parliament, and an all-party resolution passed that supports the three key issues raised by Team Anna. He then reached out to Anna, requesting him to withdraw his fast.

Anna responded by congratulating Parliament and breaking his 12-day fast while the nation rejoiced and heaved a collective sigh of relief. The prime minister’s approach preserved the authority of Parliament, yet ensured that Parliament was responsive to a popular non-violent movement. Between Anna and him, they have led the people and the Parliament of India to the finest moment of our democracy as the world has watched and applauded us.

The Parliament resolution is a giant leap for Indian democracy, but only one big step in fighting corruption. The hard work starts now. As the standing committee gets down to the nitty-gritty of drafting the revised Lokpal Bill, it is a good time to look at the insights on corruption containment offered by a cross-over subject called Law and Economics.

The organising theme underlying this approach is the pleasure-pain calculus attributed to philosopher Jeremy Bentham. The idea that all human behaviour is driven by this calculus is controversial. But it seems reasonable to suggest that crimes like corruption are indeed driven by the criminal’s perception of potential gain and the loss if caught: pleasure and pain. Much insight on how to contain corruption derives from this simple principle. However, corruption takes many forms and no matter how clever a policy, the criminal mind can be equally clever. Also, beyond a point, the costs of further reducing corruption could exceed the loss from corruption. Hence, corruption can be contained, possibly minimised, but not entirely eliminated. With this caveat, the following broad proposals can be made.

First, there is the widespread phenomenon of citizens having to pay a bribe to get what they are entitled to by right, e.g., timely delivery of pensions, ration cards, passports, etc or the timely restoration of power, phone lines, water supply, and so on. In such cases, the bribe payer is actually a victim of extortion. In a recent paper, economist Kaushik Basu has proposed that acts of bribe-giving in such cases of ‘harassment corruption’ should not be considered a crime, as at present. Instead, the punishment for the bribe seeker should be significantly enhanced. Such an amendment of the relevant law could vastly reduce ‘harassment corruption’ because the potential extortionist would be deterred by his knowledge that bribe-givers are likely to blow the whistle after getting their job done.

For other forms of major corruption, the pleasure-pain calculus has generated three basic approaches for containment: high civil service pay to moderate the lure of illegal gratification; laws prescribing very harsh punishment and/or strong law enforcement to enhance the probability and expected pain from being caught, compared to the potential gain; and strong competitive structures with transparent non-discretionary rules to minimise the opportunities for gain from bribe-driven decisions. International evidence reveals two cases of high civil service pay and low levels of corruption, Singapore and Hong Kong. However, both these places also have strong laws against corruption, strict enforcement and open, competitive market structures. Hence, the individual effects of each of the three approaches cannot be disentangled in either of these cases.

Evidence from other countries indicates that strong laws, strict enforcement and competitive structures each individually and significantly contribute to curbing corruption. In most developing countries, including India, poor enforcement of laws is the norm. Turning that around would be very costly in resources and a great administrative challenge. By comparison, enacting strong laws or introducing reforms to strengthen competitiveness are relatively costless and administratively less challenging.

These should be our strategic priorities in fighting corruption. The former requires a revised Lokpal Bill that provides for very stiff punishment of corruption. The latter requires other urgent reforms to strengthen competitiveness through transparent, non-discretionary regulations that are not unduly restrictive. While these should be our priorities, enforcement too has to be strengthened to the extent our fiscal and administrative capacities permit.

The writer is emeritus professor at the National Institute of Public Finance & Policy, New Delhi.

COURTESY: THE TIMES OF INDIA

Calcutta High Court Justice Soumitra Sen resigns

leave a comment »

JUSTICE SOUMITRA SEN & JUSTICE RAMASWAMY

Justice Soumitra Sen of the Calcutta high court resigned on Thursday, five days before his impeachment motion was to taken up in the Lok Sabha.

“I have put in my papers today,” Justice Sen, against whom the Rajya Sabha has approved an impeachment motion, said.

“I have decided not to go to the Lok Sabha and instead put in my papers,” Sen, who was to have appeared before the Lok Sabha on September 5, said.

In his letter to the President, Justice Sen has said that since Rajya Sabha has decided in its wisdom that he should not continue as a judge, he is resigning and wants to live as a common citizen, his lawyer Subhash Bhattacharya said.

The Rajya Sabha had on August 18 overwhelmingly approved the impeachment motion against Justice Sen. The Upper House made history when it initiated the process against the controversial judge  and when it passed by a majority of 172 votes a motion to impeach Justice Soumitra Sen of the Calcutta High Court for misconduct.

After the motion was passed by a voice vote, Rajya Sabha Chairman Hamid Ansari called for a division.

The electronic voting system showed 189 members in favour or the motion and 17 against it. Of the 207 membes present in the house at the time, one abstained. The law required for the motion to be passed by a two-thirds majority of those present and voting.

He has been held guilty on corruption charges by a specially constituted committee.

Justice Sen was held guilty of misappropriating Rs. 33.23 lakh in a 1983 case. 53-year old Sen is now the second judge against whom impeachment proceedings has been initiated when Rajya Sabha takes up the motion.

The first such case involved the impeachment motion in Lok Sabha of justice V Ramaswami of the Supreme Court in May 1993 which fell due to lack of numbers after Congress members abstained.

The first of the two grounds of misconduct against Sen being cited in the motion is misappropriation of large sums of money, which he received in his capacity as receiver appointed by the high court.

The second ground is that he misrepresented facts with regard to the misappropriation of money before the high court.

 

Significant victory

with 3 comments

Manmohan Singh, current prime minister of India.

Image via Wikipedia

Parliament’s unanimous adoption of a resolution agreeing “in principle” with Team Anna’s position on the three sticking points that prolonged the standoff on the Lokpal legislation is a triumph for the anti-corruption mood in the country — and for the Gandhian technique of non-violent mass agitation on issues of vital concern to the people. Anna Hazare and his team deserve full credit for recognising and riding this popular mood, which showed plenty of signs of becoming a wave; for giving concrete shape to the inchoate aspirations of the movement against corruption through the provisions of the Jan Lokpal Bill; and for working out a strategy and tactics that refused to compromise on the core issues but knew when to raise the stakes and when to settle. As for the political players, the major opposition parties did well to recognise the soundness of the core demands of Team Anna and keep up the pressure on the government. Prime Minister Manmohan Singh and the politically savvy elements in the United Progressive Alliance regime can also take some credit for the way they finally acted to resolve this crisis.

What is clear to everyone — except the unreconstructed elements within the political system who have long been opposed to a strong, independent, and effective statutory authority to go after corruption at all levels — is that the Lokpal Bill that was introduced in Parliament by the government and is now before a Standing Committee lies thoroughly discredited. The government must not be guided by those in its ranks who advocate some kind of rearguard action in committee or on the floor of the House to go back on commitments made. The fact is that in sum, that is, in the parliamentary resolution and during the preceding rounds of discussion with Team Anna, the government conceded the following key demands. In addition to Ministers, Members of Parliament (subject to Article 105 of the Constitution), and Group ‘A’ officers, the Prime Minister at one end and the lower bureaucracy at the other will be brought under the jurisdiction of the Lokpal. Secondly, under the same statute, strong and effective Lokayuktas on the same model as the Lokpal will be established in all States. Team Anna contends that no constitutional problem is involved here since the Lokpal legislation deals with substantive and procedural criminal law, which is covered by Entries 1 and 2 of the Concurrent List in the Constitution. The bottom-line is that it makes no sense to have a strong and effective Lokpal to investigate and prosecute central public servants for corruption while having defunct or no Lokayuktas in States. Thirdly, the Lokpal legislation will provide for a grievance redressal system, requiring all public authorities to prepare a citizen’s charter and make commitments to be met within a specified time frame. Constitutionally speaking, these arrangements are covered by Entry 8 of the Concurrent List dealing with actionable wrongs. Whether the Lokpal or another authority established under the same law will oversee this grievance redressal system remains an open question. For its part, Team Anna has agreed that judges need not come under the Lokpal provided a credible and independent Judicial Conduct Commission, free from conflict of interest and empowered to investigate and prosecute charges of corruption against judges, is established by law. Unfortunately, the contentious issue of a selection committee for the Lokpal could not be resolved. But considering that virtually everyone outside the UPA seems opposed to the official Lokpal Bill’s provision that the government will nominate five of the nine members of the selection committee, this can probably be regarded as a dead letter.

There are some excellent provisions in the Jan Lokpal Bill that have gone mostly unnoticed. For instance, Section 6(o) provides that the Lokpal can recommend the cancellation or modification of a lease, licence, permission, contract or agreement obtained from a public authority by corrupt means; if the public authority rejects the recommendation, the Lokpal can “approach [the] appropriate High Court for seeking appropriate directions to be given to the public authority.” It can also press for the blacklisting of those involved in acts of corruption. Then there is Section 31(1), which stipulates that “no government official shall be eligible to take up jobs, assignments, consultancies, etc. with any person, company, or organisation that he had dealt with in his official capacity.” Section 31(2) provides that “all contracts, public-private partnerships, transfer by way of sale, lease, and any form of largesse by any public authority shall be done with complete transparency and by calling for public tender/auction/bids unless it is an emergency measure or where it is not possible to do so for reasons to be recorded in writing.” And Section 31(3) requires that “all contracts, agreements or MOUs known by any name related to transfer of natural resources, including land and mines to any private entity by any method like public-private partnerships, sale, lease or any form of largesse by any public authority shall be put on the website within a week of being signed.”

In appraising what has happened over the past fortnight, a red herring needs to be got out of the way — the idea of the ‘supremacy of Parliament‘ versus everyone who comes up against it. Parliamentarians who assert this need to learn their Constitution. In India, unlike Britain, Parliament is not supreme; the Constitution is. Nor is law-making “the sole prerogative” of Parliament. The significant victory of the anti-corruption campaigners gives political India a rare opportunity to translate fine anti-corruption sentiments into a potent law that can be a game-changer. The challenge before the people of India is to ensure, by keeping up the pressure, that in the tricky business of law making in committee and on the floor of the Houses of Parliament a potentially powerful instrument is not blunted.

COURTESY: THE HINDU

Panel probing judges can probe more charges: Supreme court

with one comment

The Supreme Court Friday held that a committee set up under the Judges Inquiry Act can go beyond the charges contained in the notice of motion admitted in the Lok Sabha or Rajya Sabha and forwarded to the committee in pursuance of an impeachment motion against a judge.

’It will be naive to contend that the committee has no discretion in the matter of framing charges. Rather, the committee is duty bound to carefully scrutinise the material forming part of the notice of motion and then frame definite charges,’ said the bench of Justice G.S. Singhvi and Justice Chandramauli Kumar Prasad in their judgment.

Speaking for the bench, Justice Singhvi said: ‘We hold that the procedure adopted by the committee cannot be faulted on the ground that it made a preliminary inquiry before framing charges against the petitioner and relied upon the material received from various sources and recorded statement of some persons.’

The court said this while dismissing the petition by former chief justice of Sikkim High Court, P.D. Dinakaran (since resigned), challenging the judges inquiry committee headed by apex court judge Justice Aftab Alam holding preliminary inquiry and framing charges that were beyond those contained in the notice of motion.

Justice Dinakaran had also contested the committee’s action in seeking more information from the those who briefed the Rajya Sabha members before the motion of impeachment was initiated.

In the notice of motion sent to the Judgers Inquiry Committee, there were 12 charges which were increased to 14 by the probe committee headed by Justice Alam.

The committee, the judgment said, can also receive other material which may support or contradict the allegations enumerated in the notice of motion.

In an appropriate case, the committee can require any person including the one who may have supplied material to the members of the Lok Sabha or the Rajya Sabha, as the case may be, to give clarification on any particular point or make available authentic copies of the documents, the judgment read.

The committee can also call upon such person to file affidavit or make a statement and summon him at the stage of investigation so that the judge may get an opportunity to cross-examine him, the judgment added.

COURTESY : LEGAL INDIA

 

Objection, your honour

with 2 comments

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”.

https://i2.wp.com/www.hindustantimes.com/images/HTPopups/280811/28_08_11_pg11a.jpg

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.
https://i2.wp.com/www.hindustantimes.com/images/HTPopups/280811/28_08_11_pg11b.jpg

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 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
Related articles