Chanakya's New Manifesto: To Resolve the Crisis Within India (21 page)

  3.50  After looking through the provisions that deal with judicial accountability in various other countries, including the US, UK, Germany, France, Canada and South Africa, and keeping the specific needs of India in mind, I think it is best if a separate ombudsman, the Nyayik Kshetra Lokpal (NKL), is appointed exclusively for the judiciary.

  3.51  Some proposals for the generic Lokpal, give the latter the powers to oversee corruption in the judiciary as well. However, given the obvious conflict of interest between the judiciary, itself an organ to adjudicate on matters of corruption, and the Lokpal, it is unlikely that the judiciary will accept an authority extraneous to it and sitting in judgment on the conduct of the highest court of the land. However, the judiciary can have no objection to an agency created from among its own members, and in consultation with the CJI, to be an independent watchdog to ensure right conduct within the institution. On the contrary, it should welcome such a watchdog, as part of its own stated commitment to rectitude and appropriate conduct for all judges.

  3.52  In view of this the it is proposed that the Nyayik Kshetra Lokpal be headed by a retired CJI, who would be selected in consultation with the serving CJI. Two retired chief justices of any of the high courts would be the other members of the NKL panel, and they would be appointed through consultation between the chairman of the NKL and the CJI.

  3.53  A three-member panel would suffice since the focus would be restricted to only one arm of the government and would have to deal with a smaller number of cases.

  3.54  The NKL panel would have constitutional status. The chairman and the members would serve a term of five years.

  3.55  In addition to suo motu powers to examine and investigate any complaints of corruption, all complaints by citizens would be dealt with by the NKL. On receipt of a complaint the NKL will conduct a preliminary inquiry; if it believes there is a prima facie case, it would direct the matter to be investigated. The prima facie inquiry should be completed within a period of thirty days.

  3.56  A compact, dedicated wing of the CBI would be specifically allocated to assist the NKL in investigating complaints. This wing would complete the investigation within six months, and recommend to the NKL either a closure report or the filing of a charge sheet. The accused would be given a hearing by the NKL before charges are framed. (The JSAB, as currently proposed, in fact states that the Oversight Committee can for investigation purposes take the assistance of such offices of the Centre or state governments or any agency or authority thereof as it deems fit. I am proposing that instead of such a vague provision, a dedicated wing of the CBI is allocated to the NKL).

  3.57  The CJI, and the chief justice of the high court within whose jurisdiction the accused falls, will be informed at this stage. Their views, which would be non-binding in nature, could be taken into account by the NKL.

  3.58  The wing of the CBI entrusted with investigation will also be empowered to take up the prosecution of an accused once a charge sheet is filed.

  3.59  A special court will be constituted by the CJI to deal exclusively with all matters relating to the prosecution of judges or subordinate staff within the judiciary. The special court could be presided over by a retired judge of the Supreme Court or a retired chief justice. It would function in the nature of a fast-track court and come to a final decision within six months of commencement of judicial proceedings.

  3.60  If a judge is convicted, s/he would be punished in accordance with the provisions of the law of the land, in this case the PCA. Simultaneously, the CJI would, in the case of a high court or Supreme Court judge, recommend to the president that they be dismissed immediately. In the case of the subordinate judiciary, the chief justice of the concerned high court would issue orders for dismissal.

  3.61  Any complaint pertaining to the chief justice of a high court, or a judge of the Supreme Court, would require the full NKL panel to arrive at a unanimous decision on whether to investigate and prosecute. If the complaint pertains to the CJI himself, the NKL, after preliminary enquiry, will authorize investigation only after presenting its findings to the president of India. The president could ask for the matter to be reconsidered, but if the NKL resubmits its recommendation to proceed with the investigation, the president shall authorize it.

  3.62  While the proceedings until the stage of preliminary inquiry and investigation would be confidential, the prosecution of the accused judge would not. In addition, the provisions of the RTI would be applicable to the working of the NKL.

  3.63  Frivolous complaints, if so judged by the NKL, would attract a penalty of imprisonment for a maximum period of two years and a fine of up to
2 lakh.

  3.64  With the setting up of the NKL, the unworkable provision in the Constitution for the parliamentary impeachment of judges must be annulled. Articles 124(4) and 217(1) of the Constitution deal with the impeachment process, currently the only measure available to proceed against inappropriate behaviour on the part of judges. But its impotence has been publicly acknowledged by the government itself. The 2
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ARC is categorical in this regard: ‘At the time of framing the Constitution, it was felt that judicial conventions and norms would constitute strong checks. However, the impeachment provisions have turned out to be impracticable as it is virtually impossible to initiate any impeachment proceedings, let alone successfully conclude them. There are five stages, all of them difficult to accomplish. First, is a mandatory presentation of not less than a hundred Lok Sabha members or fifty Rajya Sabha members for giving notice. At the second stage, the speaker or the chairman has to admit the motion; if he does not admit it, the matter ends there. In the third stage, if there is one, a committee is appointed to conduct an enquiry. The fourth stage is that the committee makes a report and forwards it to the speaker or the chairman. The fifth and final stage is reached when the two houses of Parliament proceed to act in the manner prescribed by Section 6(3) of the Judges (Inquiry) Act. Inadequacy of the existing mechanism was affirmed in the K. Veeraswami case, and in the infructuous impeachment proceedings in the case of V. Ramaswami, even after adverse findings of the Judges Committee under the Judges Inquiry Act, 1968.’
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  3.65  An impeachment process, under which, in spite of manifest proof of corruption, no judge has ever been punished, is an insult to the intelligence and intent of our Constitution. The process deserves to be annulled.

  3.66  In parallel, the time has come to expose to ‘sunlight’ the entire process of how judges in our country are appointed. We have already stated that no other country in the world has a system where the judiciary appoints itself with no outside advice available for this purpose. The 2
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ARC forthrightly stated: ‘The current system of appointments is not open to public scrutiny and thus lacks accountability and transparency’.
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  3.67  It is therefore proposed that a National Higher Judicial Selection Commission (NHJSC), broadly modelled on the UPSC, be set up for all appointments to high courts.

  3.68  The NHJSC would consist of a panel of seven members chaired by a retired CJI. The other members would be constituted as follows: one retired Supreme Court judge; three retired chief justices of high courts, with due regard for regional representation; one former attorney general; and the secretary, ministry of law, who would be an ex-officio member, and the secretary of the panel.

  3.69  High courts would announce vacancies in their courts and invite applications from lawyers and district judges, as per criteria devised by the NHJSC in consultation with the CJI. These would be screened by a committee consisting of the chief justice of the concerned high court, the chief minister of the state, and two judges nominated by the chief justice from that high court. A list of names (three times the number of the advertised vacancy) would then be sent to the NHJSC, to make the final selection.

  3.70  It would be incumbent on the registrars of the high courts in question to advertise vacancies six months in advance, and have the panel within each state process the list of responses for consideration. The selected list of candidates, along with each candidates’ detailed CV, vetted in advance, must reach the NHJSC at least sixty days prior to the vacancy coming into effect.

  3.71  The NHJSC would be empowered to examine the names proposed by the high courts; it would have the right to reject the entire list and give reasons for doing so, and ask for a fresh list to be submitted. It would make its final selection, preferably by consensus and, if not, by majority vote, after interviewing all the candidates. Those selected would then be recommended for appointment to the president of India through the CJI. The NHJSC could be asked to reconsider its recommendations by the CJI, in the first instance, or by the president. In both cases, if the NHJSC resubmits the same names, they shall be accepted.

  3.72  Considering the pivotal importance of the calibre and integrity of judges, there is no reason why such a transparent, fair and time-bound system should not be adopted for all appointments to the higher judiciary.

  3.73  The appointment of judges of the Supreme Court would be outside the purview of the NHJSC. In a slight variation of the current system, they would be selected by the CJI in consultation with two judges of the Supreme Court (nominated for this purpose by him), and the law minister. This four-member panel would recommend names to the president. The president could ask for the panel, or any specific name or names on it, to be reconsidered; but if the names are re-submitted, the president would be bound to accept the recommendation.

  3.74  The creation of an independent judicial ombudsman (with a new system for the removal of corrupt judges), and a transparent system for the appointment of judges, would contribute substantially in reducing judicial corruption and the delays caused by such an appallingly high level of vacancies in the higher judiciary.

  3.75  However, in addition, there must be a much higher degree of supervision and monitoring of the judicial system by the higher judiciary. Article 235 of the Constitution gives high courts control over the subordinate judiciary, and this is a responsibility which, given the manifestly tardy pace of judicial proceedings and the alarmingly high number of pending cases, the Supreme Court must ensure actually takes place. The 2
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ARC and the Planning Commission’s approach paper on the Twelfth Five Year Plan makes useful suggestions in this regard, including the creation of a court audit and inspection team, the formulation of broad guidelines for different kinds of cases, the preparation of a manual for summary trial procedures, guidelines to prevent unwarranted adjournments, the amendment of the Criminal Procedure Code to fix a time-limit for various stages of trial, and better monitoring of the functioning of the court system.

  3.76  Further, all courts in the country system must, in the national interest make public, every six months, figures of the number of cases disposed off and the number pending.

  3.77  Once judicial reforms have been put into effect, exemplary and timely deterrent punishment for corruption becomes a feasible goal.

  3.78  While the definition of corruption can be continually debated and more areas added to it over time, for the moment bribery and other related offences listed from Articles 7 to 15 in the Prevention of Corruption Act 1988, provide a sufficient basis to proceed. It is much better to ensure conviction in the areas already defined than to expend energy in fine-tuning the ambit of the offence with very little to show in terms of real follow-up action.

  3.79  With an effectively functioning judiciary in place, all corruption cases should be dealt with by fast-track courts (FTCs), specially set up for the purpose, and which will arrive at a final and binding verdict within a maximum time frame of six months.

  3.80  As stated earlier as well, the institution of FTCs now have full legal validity. In April 2012, the Supreme Court upheld the government’s 2011 policy for instituting such courts, and further directed that they should be set up permanently and not merely operated on an ad hoc basis. Invoking the powers of Article 142 in the Constitution, the Supreme Court issued a series of directions to the Centre and the states on the setting up of these courts. As per its directions, judges to the FTCs will be chosen by the high courts concerned. They will then be interviewed by the chief justice and the four senior-most judges of the high court.

  3.81  To make this initiative more effective the Supreme Court should mandate that all High Courts should constitute, within six months, the FTCs required to handle cases of corruption and simultaneously direct the government to provide the funding and infrastructure so that they are able to commence operations.