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 centralised 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 , politicians and even in judiciary who are in charge of the governance 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 that vital organ of him which would
ultimately bring an end of his life.

Jan Lokpal Bill Offends Constitution

The very object of the bill seems to be create a new system and not to introduce new mechanism
to provide for deterrance 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.You have no right to make
encroachment on basic feature of the Constitution-seperation of powers between Executive and
Judiciary provided by Article 50.

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,selection, 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, 196,followinga procedure established by law.

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, inview of Articles 50 and 124?
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 “Mediator of the French Republic”(MFR) 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 ,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 , Bbut it had no right or authority to reprimand the court.

In most of the countries 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. At the same time it cannot
be forgotten, in countries like finland democracy is in a developed state.

In Germany, Greek, 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 sum and substance it can be said that the higher court should not be subjected to the jurisdiction
of the Lokpal in India,looking into basic features of our constitution, 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 , that is too in a very limited spere. This
should be a 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 higher Judiciary independent , free and protected from
vexatious complaints and political attacks. The trust on the judges of higher judiciary is the basis on
which balance between the accountability and independence can be struck and rule of law can
prevail. And if some one says, that trust is lost, then nothing can save our democracy . And then why
Lokpal himself alone to be trusted?

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