You be the Judge - III
TR Raghunandan, ex-bureaucrat and ipaidabribe spokesperson concludes his argument on whether the Lokpal Committee should sit above the Judiciary with this, the third in the series of posts on the subject.
Hi Caesar! I am Caesar’s wife. (Or is it the other way around?)
Essentially, we should consider which institution is to be entrusted with the task of final and overarching oversight. As the Janlokpal team itself concedes, there is some degree of circularity here, particularly when one considers these questions at the highest level. Whenever one considers giving powers to any authority, be it a regulator or a service provider, it is important that there are checks and balances. Defining the degree of detail in a system of checks and balances is a very delicate task. On the one hand, no institution is above being corrupted or subverted.
On the other, if we try to design checks and balances to insure against all possibilities of institutional misuse, we might hamper the very purpose for which the institution concerned was set up. At some stage, we must trust individuals who hold strong regulatory responsibilities to behave responsibly. If we begin to get suspicious, then there is no end to whom we can suspect. For instance our distrust of the Judiciary might be a case of familiarity breeding contempt. In my view, the needle of suspicion against the Judiciary can equally be turned against a future institution of Lokpal as well.
The Janlokpal Bill is designed on the foundation of the belief that once the Lokpals are selected well, they can be trusted with the sweeping powers that are proposed to be given to them. The Janlokpal Bill proposes to select the Lokpals well by mandating the creation of a very broad-based selection committee and by making the actual details of the selection process completely transparent.
I doubt whether this is sufficient safeguard. It is my belief that it is well-nigh impossible to select someone who is so completely honest that no checks and balances are required. Placing the Judiciary below the Lokpal will undermine the respect we must have for the Judiciary as an institution of final recourse. Moreover, it will be odd if the Lokpal is above the Judiciary, but also appears as a prosecuting agency before the same judiciary.
Having the Lokpal above the judiciary would then raise the next question, who would regulate the Lokpal?
The pedestal; somebody’s got to be on it.
In the final analysis, I am against the inclusion of the Judiciary in the purview of the Lokpal. I think that judicial corruption has to be handled internally by the Judiciary itself. I agree with the Janlokpal team that this approach has not worked well so far, but believe that ultimately, the Judiciary must realise its own responsibility in self-regulation.
There are moves in this direction, emerging from within the Judiciary itself. For instance, the Supreme Court has set up an in-house committee to address the question of bad conduct inconsistent with the high office on the part of a non-cooperating Judge/Chief Justice of a High Court. This does not comprise proved misbehaviour, but is a matter of concern, nevertheless. The Supreme Court judgment in C. Ravichandran Iyer vs Justice A.M. Bhattacharjee & Others (SC 339, Judgements Today, 1995(6)) contemplated that bad conduct could be disciplined by self-regulation through an in-house procedure.
There is no reason why this approach should not be enlarged to cover the issue of permission to file FIRs and launch investigations.
Transparency in the process of self-regulation by the Judiciary should be good enough. We could do this by looking at the provisions of the Judicial Accountability Bill, rather than aiming for everything to be included in the Janlokpal Bill.
-TR Raghunandan