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Nirmalkumar Suryawanshi (Advocate)     15 April 2011

Jan Lokpal Bill:Attack on Judiciary

 

Note on ‘Jan Lokpal Bill’ proposed by ‘Civil Society’

Attack on Judicial Independence

Nirmal kumar Suryawanshi

Advocate.

10 th April 2010

Lokpal   or ombudsman  is not a new concept. In 1974, in Honkong a Commissioner against Corruption ordinance was promulgated .In 1988, Independent Commission  against the Corruption was appointed in New South Wells. United  Nations  Anti Corruption Tool Kit provides for the ombudsman or Laokpal, as we say it. It defines the functions of ombudsman

 

Ombudsman or Lokpal

 

 “Tool #5 provides an overview of the mandates and functions of an ombudsman

which, in most countries, generally go beyond corruption cases to include

maladministration attributable to incompetence, bias, error or indifference. As

many complainants will not know or suspect the presence of corruption, the

ombudsman can play an important role in determining this and referring such a

case to an anti-corruption agency or prosecutor for further action. Further

advantages of ombudsman structures are their informality, which allows them

to be used in relatively minor cases and their powers to fashion a suitable

remedy for the complainant. In some countries, ombudsmen have taken a more

proactive role in studying the efficiency and operational policies of public

institutions in an effort to prevent injustices occurring in the first place.

Tool #5 outlines the necessity for the independence of the ombudsman, the

need for a broad mandate and jurisdiction to allow the ombudsman to consider

complaints that are not within the purview of other forums such as the courts or

administrative tribunals, as well as a requirement for adequate investigative

powers, operational transparency, accessibility and resources.”

Keeping in view the necessity of Lokpal (ombudsman)as endorsed by the United Nations, is  for receiving  complaints regarding corruption, maladministration, indifference, bias, favouritism and culpable negligence, from the members of general public, against public institutions, authorities and ministers.

Lokpal has to investigate the complaint and if satisfied  he should refer it to the Police or anticorruption agency for further action.

It  was never intended  to assign functions of courts and police to Lokpal. It was never intended to replace police agency and courts and assign their job together to Lokpal. It was also never intended to assign legislative functions to him.

It  should always be kept in mind Institution of Lokpal is recommended to clean the house and not to damage it or destroy it in the name removing the dearth of corruption.

 

Institution of Lokpal in India

India is democratic republic and rule of law prevails here. We have a Constitution. We have criminal justice system and impartial and independent judiciary. We have a strong parliamentary system. Should  institution of Lokpal, which would be a creation of ordinary statute ,be allowed to make inroads, in all these constitutional institutions which are the vital organs of our constitution. Should all powers, Executive, judicial and legislative allowed to be concentrated in the hands of Lokpal, just to destroy democratic and constitutional set up of the nation.

So called ‘Jan Lokpal Bill’, drafted and proposed by the “Civil Society” is the product of unthinking exuberance of those who believe more  in politicising  the issue and less serious about  searching for effective democratic means  for eliminating corruption which is eating away the body of the nation.

There cannot be two opinions about the cancerous growth of corruption and maladministration amongst bureaucrats   and politicians who are in charge of the government of the nation. It is also true that there is urgent need to act against it. But it is also equally true while operating the patient  a doctor should not take a risk to lose his vital organs which would ultimately bring an end of his life.

Jan Lokpal Bill Offends Constitution

Jan Lokpal Bill(JLB)is a dreadful product.

The very object of the bill is to create a new system and not  to introduce new mechanism to provide for deterrent  to corruption  and maladministration. If new system is to be introduced, which is indented to compete with the constitutionally established criminal justice system and justice delivery system, it can be introduced only by bringing about constitutional amendments within the permissible limits laid down by the Supreme Court in Keshawanand Bharati case.

Yes, you can introduce a new mechanism, by enacting a law by Parliament  to deal with corruption, by introducing Lokpal Bill, within the constitutional limits, without disturbing the Rule of Law and established Criminal justice System and Justice delivery system.

Prime Minister and Chief Justice of India  

JLB does otherwise.

The  Bill defines” public servent” and includes in it-

(a) the Prime Minister;

(b) a Minister;

(c) a Member of Parliament;

(d) Judges of High Courts and Supreme Court;

 

 

 

It further defines ,”Action” –

“Action” means any action taken by a public servant in the discharge of his functions as such public

servant and includes decision, recommendation or finding or in any other manner and includes

willful failure or omission to act and all other expressions relating to such action shall be construed

accordingly;

Uncontrolled powers vested in Lokpal

The section 16 of the billl vest uncontrolled  and omnipotent powers to Lokpal to investigate the action taken or decisions , recommendation and findings given by ‘pubic servant’ who may be Prime Minister or Chief Justice of India.

Section 17, no doubt  carved out the exception, disallowing investigation into action taken by judicial or quasi judicial authorities means courts or tribunals, but only in those circumstances where no mala-fide is pleaded by the complainant in his complaint. Just the complainant has to allege mala-fide against the Chief Justice of India, and then Chief Justice Should  surrender to the jurisdiction of Lokpal. And Lokpal may use police powers vested in him against Chief Justice under Section  12 of JLB and may also issue search warrant for discovery of documents in his custody which may concern with the case he has decided and about which the complaint has been made.

Judicial Independence

What about the independence of judicial system or courts which is the basic feature of the Constitution of India?

The Constitution of India provides for in its Article 124, appointment and removal of Supreme court judges. The Supreme court Judge cab be removed on the ground of ‘proved misbehaviour’ or incapacity by impeachment. It also provides for  a legislation by the Parliament  to provide  a procedure for presentation of address by the Parliament and investigation and proof  of misbehaviour or incapacity of the judge.

Under the Constitution” proved  misbehaviour “ or incapacity of a Supreme Court Judge  is the ground on which the presentation of the Parliament  for his impeachment can alone be invited.

It is Oblivious, there should be an inquiry and decision  Which should be in the nature  judicial inquiry, on the conduct or capacity of the SC Judge, before going for his impeachment by the Parliament.

The misconduct of a judge therefore should be proved before a committee constituted under the Judges Inquiry Act, 1968.

Should this Judicial function should be assigned to investigation authority such as Lokpal is million dollars question? Should a committee constituted under the Judges Inquiry Act, 1968 be replaced by Lokpal? Would it be permissible under the Constitution?

 

Ombudsman and the Judiciary  : Other Nations

In other countries  the independence of the judiciary is protected from the authority of Ombudsman.

In European countries parliamentary Ombudsman may not intervene in any proceedings brought before a Court nor question the soundness of a Court decision. For examples in France, Ombudsman, that is of the “Mediator of the French Republic” may not intervene in any proceeding brought before a Court nor question the soundness of a Court decision; but he  is entitled to make recommendations   to the organization concerned. However the MFR, in the event of failure to execute a Court decision court ,the Court may be requested by  MFR to comply with the decision with in a period stipulated by himself .If the request of the MFR is not complied with , it may send a special report thereof .

A parliamentary   Ombudsman   is elected by the members of parliament by majority of votes and may be removed by them ,If a trust and confidence of the parliament in him is lost. However the parliament has no right or authority to interfere with the functioning and administration of the MFR.

In Finland the parliamentary Ombudsman functions in accordance with the regulations approved by parliament and he is entitled to oversee the performance of the duties of the Court of law in the discharge of public functions and the fulfilment of their legal obligations.

But in  the Germany, Greeks, Iceland ,Ireland ,Kazakhstan, Norway, Netherland and such other countries the petitions before the Ombudsman against the Court decisions are not entertained. However in some countries some exceptions have been made to this rules if complaint  regarding against the Court decisions relate to violation of Human Rights or Freedoms of the person.

In some and substance it can be said that the higher court should not be subjected to the jurisdiction of the Lokpal in India, except the complaint relates to the clear violation of Human Rights or gross and inordinate delay in deciding the case attached with the ulterior motive or mala fide on the part of the Court. This should be very rear  occasion.

I may conclude that the creation of the institution of the Lokpal is creation of a political institution and not a judicial institution. The rule of Law and principal of separation of powers , which is a basic future of the Constitution of the India , should not be disturbed or touched in any case or at any cost if the Democratic Republic of India is to be sustained  in long run, while giving birth to the Institution of Lokpal.. 

Independence of judiciary  v. Judicial accountability

Independence of judiciary is a basic feature of the Constitution of India. Judicial accountability is must but at the same time it should not be separated from Judicial Independence. Both should prevail together, and it is therefore, any law to be enacted by the Parliament under Article 124 Should  be made with utmost care and caution and should strike  a fine balance between  Judicial accountability  and Judicial independence. The Institution of Lokpal is very different type of  institution, meant for different purposes and   Constitutional authorities such as Judges of Supreme Court  should not be  allowed to  be dragged by  investigation authority such as Lokpal (Police!) with general category of Public Servants. It is totally unconstitutional. It cannot be forgotten makers of the Constitution have made special provisions for the appointment, salaries, inquiries and removal of Supreme Court  Judges to keep the hire Judiciary independent , free and protected from vexatious complaints. The trust on the judges of higher  judiciary is the basis on which balance between the accountability and independence can be struck. And if some one says, that trust is lost, then nothing can save our democracy . And then why Lokpal himself to be trusted?

Legal Studies and research Centre

www.Kanoonindia.com

kanoonindia@yahoo.com

lexnirmal@gmail.com



Learning

 15 Replies


(Guest)

Dear Nirmal

Nice to see a refreshingly different interpretation of the Jana Lokpal Bill being pushed around. I am not a lawyer and hence would not attempt to comment on the legality of your comments. But I think we need to define our judicial system vis-a-vis judicial system of most of the advamced countries with a long history of democratic principles. Those countries have Jury system where its democracy in all its decisions from the lower courts to the supreme court of those countries.

With 56 plus years in the solar system where Rahu Ketus read Manuwadi Manhoos amongst Hindus( despite in the minority) ruled the judiciary as well as abused the supreme power vested with YOURLORDSHEEPS i have reason to believe LOKPAL will only serve a HIGH CASTE community and would be equally useless for the lallu yadavs.

If I am allowed to plainspeak( and not molecularly targeted as being the mole against the state of India such as Vinayak Sen ) I would suggest:-

Disbandment of Administrative Services toatally. We will find more Brajesh Misras and Nilekanis from the civil society who will handle his/her portfolio in his /her chosen field more efficiently. Its deputaion from the private Inc to India Inc.

Switchover to Jury system with UID is taken as the only identity with a computergenerated Pseudorandom process for selection of Juries at all level with no exemption for anybody doing his/her part of the Jury duty.

Conscripttion for all able-bodied for a period of 3 years stretched till one attends the age of 27 Years , Minimum six weeks to 6 months Maximum for military training . Once we achieve this there will be civilians with Uniforms and civilians without uniforms at any point of time. And we will have Rahuls and such crowned princes at least militarily qualified to become the Prime Minister of our Country.

Stop politician-bashing , politics be renamed as Jana-Niti instead of Raj-Niti. Politicians will be renamed as Jana-Neta instaed of Raj-Neta. Mr Modi hence forth be reminded of Jana- Dharm instead of Raj-Dharms by his Peers like that of Bajpeyis. This will itself discourage many a Mummy Pappa say Rahuls , Sindhiyas etc etc to enter Jana-Niti. We the not so common men and women of India meanwhile try our level best to blame politicians for all the ills in our society. We then can corner people like BA bA rAM dEVS, sRI sRI sRI sRI 420s and such apolical religious supposedly pious but fake sants and sadhus with or without UIDs.

And no vermilon tilak on visiting Buffets, Bill Gates/ Clintons, No candle lighting , no inauguration with Hindu Ponga pandits shouting top of their voices as this is a true secular country and democracy is above all including the religions preached or practised. Let the religions be practised inside the four walls of the houses or temple of worships and not at the govt expense.

Once we achieve these there will be hollistic growth , equitable distribution of wealth and India Shining literally.
 

 

 

 

Arup (UNEMPLOYED)     16 April 2011

THANKS A LOT.

Atul R Rumale (legal consultant)     17 April 2011

One should say that it is good. As according to me it will be first enactment in which Defintion of CORRUPTION is given.

Secondly it is imporatant as it is prevailing system. 

Atul R Rumale (legal consultant)     17 April 2011

 

One should say that it is good. As according to me it will be first enactment in which Defintion of CORRUPTION is given.

Secondly it is imporatant as it is against the prevailing system. Now in a days it is neceassary to repair the system.



Arup (UNEMPLOYED)     17 April 2011

is there any defination of corruption in the draft?

Nirmalkumar Suryawanshi (Advocate)     17 April 2011

No

MALLIKARJUNA SHARMA (ADVOCATE)     18 April 2011

I found that UN Convention Against Corruption defines Public Officials as follows: 

For the purposes of this Convention:

(a) “Public official” shall mean: (i) any person holding a legislative, executive, administrative or judicial office of a State Party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person’s seniority; (ii) any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party; (iii) any other person defined as a “public official” in the domestic law of a State Party. However, for the purpose of some specific measures contained in chapter II of this Convention, “public official” may mean any person who performs a public function or provides a public service as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party;"

On the Independence of Judiciary also it is laid down therein:

 

Article 11. Measures relating to the judiciary and prosecution services

1. Bearing in mind the independence of the judiciary and its crucial role in combating corruption, each State Party shall, in accordance with the fundamental principles of its legal system and without prejudice to judicial independence, take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary. Such measures may include rules with respect to the conduct of members of the judiciary.

2. Measures to the same effect as those taken pursuant to paragraph 1 of this article may be introduced and applied within the prosecution service in those States Parties where it does not form part of the judiciary but enjoys independence similar to that of the judicial service.

Nirmalkumar Suryawanshi (Advocate)     18 April 2011

Thanks.Our Constitution defines Judicial Independence.UN Conventions are applicable subject to fundamentals of legal system existing in the State.


(Guest)

We are barking at the wrong tree. In a few years from now govt offices will be reduced to 15 % of the so called private establishment. In gist Lokpal, RTI etc etc will be reduced to farce as 85% of the corruption will take place outside its purview. Neera Radias were there in some shapes and sizes they are still there and won't be under the purview CVC, CIC or Lokpal.

It is a sheer waste of time , a agitation aimed at cutting Grand old congress to minimum during the crucial staes elections. It will die down after 13 May. Why I am so pessimistic? I see the composition of the draft committee, silent support of the BJP/RSS etc etc and the Saffronised Bharat Mata Sign posting behind Anna Hazare and his foot soldiers on the dias. Those are not at all good signs for the people of india of indian origin.

Atul (Service)     20 April 2011

I beg to differ from Sh. Mandal,

Is it alright for  PM to make a statement that Mohameddian has first right on the resources.

Is it right the congress cheif to divide in India on women reservation bill and when asked this way men will need reservation, the reply is we will create a reservation for men that time. In short keep on dividing the country.

Is it alright for the ruling party to keep rougue ministers to make lose comments on the members of the civil society. Where they themselves are 99.99 % corrupt.

The main purpose of JLP is to get accountability of politicians. They treat themselves as Rules/ kings and not elected members. Largest and biggest scamsters are our politicians only and must make them accountable.

The dirty face of our politicians can be seen from wikileaks, where our so called future young PM candidates is more worried our their political enenmy them terrorists who attacked Mumbai.

I think we all should support fight against overture of our government and congress with full might. Otherwise they will allow JLP to see the light of the day.

Arup (UNEMPLOYED)     20 April 2011

seeing the pending bill last 42 years, people is now on mood that - let the bill place before the perliament first,  then people will see what is the stand of our perliamenterians on the bill.

Arup (UNEMPLOYED)     20 April 2011

Jan Lokpal Bill : Attack on Judiciary

 

---   it is not attack on independence of judiciary but an attack on corruption among judiciary.

i tested this corruption.


(Guest)

Dear Atul

 You may beg to differ but your great grand fathers conspired to keep the society divided on castes by birth ( which was earlier based on profession varna system where one could have all the castes( read Varna) together depending on the profession of the male representatives of the integrated family).Caste by birth helped Raja maharajas to keep the crown in the family. Caste by birth helped the Raj ke put ( Kayasthas) to keep the govt jobs amongst themsemselves and castes by birth kelped the So called brahmins by birth to keep all the Temples, Mathas, Peethas , Toles and umpteen numbers of Mis-Trusts with them. All those posts of Pujajees to Dollar sHESADRIES are sole reserved for the Brahmins by castes. The untouchables got their job of carrying night soil pot on their heads , Sweeping / Cleaning the toilets and sewege of the Dabang household reserved for their children forever. Any upward mobilty of those hap less creatures is seen as TOO MUCH to tolerate by your clan who have the state as well as YOURLORDSHEEPS held hostage to your cause as on date.

Lower castes were divided. They are now trying hit back and pay your clan by the same coin. And now you are on the agenda MUSLIM HATE HATE  to divide the society to keep your hold by hook or crook. That's why a legitimate admission by Dr MMS is hurting your clan . Stop dividing the society further. It has reached the point of no return.


(Guest)

I wish to request the learned members to highlight the points and counter points raised by the political parties for the past 42 years on this very issue. Why those points are discussed thread bare in this forum which will ultimately help the drafting committee to frame the Act foolproof.


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