Comment Pieces

You be the Judge

Should the Lokpal Bill cover the Judiciary too is a debate raging currently across the country. ? But even as this post was being written, the government took the decision not to include the Judiciary under the Lokpal. The Janlokpal team has opposed this vehemently and as the build up to the fast planned by Anna Hazare on 16 August, gathers momentum, this and the decision to keep the Prime Minister out from the purview of the Act are likely to be the biggest bones of contention.

TR Raghunandan,ex-bureaucrat and ipaidabribe spokesperson takes a closer look at the issue through various stories of intended impeachment.

Want to impeach a Judge? Run a Marathon!

Before we proceed to the Janlokpal Bill’s approach on the question, let us look at the current system in vogue. At present, a judge can be removed for misconduct only through the process of impeachment, which is laid down in the Constitution (Article 124 (4) ). This is a long and laborious process as prescribed in the Judges (Inquiry) Act, 1968. The steps for impeachment are as follows:

Step 1: A notice for removal of a Judge has to be signed by either 100 members of the Lok Sabha and submitted to the Speaker, or by 50 members of the Rajya Sabha and submitted to the Chairperson of the Rajya Sabha.

Step 2: The Speaker or the Chairperson has to admit this motion.

Step 3: The Speaker or Chairperson must appoint a three-member committee comprising the sitting Chief Justice of India or a sitting Judge of the Supreme Court, a sitting Chief Justice of a High Court, and an eminent jurist to undertake an investigation.

Step 4: This committee is to undertake the investigation.

Step 5: The Committee must find the Judge concerned guilty. If its report is that the Judge is not guilty, the motion is dropped.

Steps 1 to 5 are prescribed by the Judges (Inquiry) Act, 1968.

Step 6: The matter is then placed for impeachment before the houses of Parliament.

Step 7: The Judge is impeached and removed on the ground of ‘proved misbehaviour or incapacity’ if both houses of parliament separately, vote by majority for removal.

The slippery Ramaswamy:

It is little wonder that in 63 years after independence, no judge of the Supreme Court or High Court has been impeached so far. The Judge that came closest to being impeached was V. Ramaswamy, who was a sitting Supreme Court judge when impeachment proceedings were started. He escaped because of political compulsions, with the Congress party buckling under pressure from the AIADMK to spare him. Ramaswamy retired in peace, following which he became the Chairperson of the Tamilnadu Law Commission and then formally joined the AIADMK party.

But again, the Lokpal Bill is not speaking of removal of a judge. It only speaks of filing an FIR against a Judge for commencement of investigation. Is there any bar in the constitution to the filing of an FIR against a Judge? Actually there is none! So then, where is the question of prior permission required to file an FIR? Thereby hangs a tale…

The Veerasamy case-athon

K Veerasamy, was chief justice of the Madras high court from 1969 to 1976. An investigation was launched to enquire into allegations of acquisition of assets disproportionate to his known sources of income. Finally, the CBI, which was entrusted with the investigation, proceeded to file an FIR. However, when the matter went to the Supreme Court, it ruled in a judgment in 1991 that “no criminal case shall be registered under Section 154, Criminal Procedure Code [Cr.P.C], against a Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the [Prevention of Corruption] Act, the case shall not be registered.” Justice Veerasamy was never proceeded against, and lived to the ripe old age of 96. And here is an interesting bit of trivia---Veerasamy was the father- in- law of the aforementioned Ramaswamy, the one who escaped impeachment!

It may seem inexplicable from a layperson’s perspective why the Supreme Court passed such an order. However, on closer consideration, it was probably necessary. Judges are always under tremendous pressure and the parties that appear before them often have much to gain or lose. Therefore, it is necessary to protect Judges, even leaning towards over-protection, to ensure that they function without fear or favour. However, one must admit that this power bestowed upon a single individual, the Chief Justice of India, has a great deal of discretion. The Janlokpal team points out that the Judiciary has time and again protected Judges of doubtful integrity, and that even honest Judges have been known to refuse permission to prosecute Judges.

Two cases are still pending; the Committee says, namely, the requests by the Campaign on Judicial Accountability of permission against Justice Bhalla of Allahabad High Court, which is pending before the Chief Justice since 2006 and against Justice F I Rebello, which is pending since September 2010.

Washing powder Nirmal

It is indeed true that in twenty years, only once has the Chief Justice of India granted permission to an investigating agency to register a criminal case against Judges of a High Court. Chief Justice Balakrishnan allowed the CBI to interrogate two Judges of the Punjab and Haryana High Court, Nirmaljit Kaur and Nirmal Yadav, in connection with the cash-for-judge scam. A law officer sent Rs.15 lakh to Justice Nirmaljit Kaur’s official residence and later claimed that it was meant for Justice Nirmal Yadav and had been delivered to Justice Kaur by mistake !

What the Janlokpal says:

The Janlokpal Bill envisages that the permission to prosecute will no longer be with a single individual, the Chief Justice of India, but would be entrusted to a seven member bench of the Jan Lokpal, which may have a majority of judicial members. Everything else would remain the same. Is that correct? Well not entirely, because once an FIR is filed, then investigation and prosecution would be undertaken by the CBI, and the Lokpal Bill envisages that that part of the CBI would be part of the Lokpal. So in effect, the Judiciary does come under the Lokpal.

The Lokpal gives permission for filing the FIR and then the investigation and prosecution is undertaken by another wing of the Lokpal. Once the investigation is completed, then a full bench of the Lokpal is to decide whether to initiate prosecution.

Therefore, what the Janlokpal is asking for is quite a bit.

Watch this space for Part II of this series for more discussions on the Judiciary and the JanLokpal Bill.