[CA] SC Mutiny [CJI Vs Other Judges]

Four judges of the Supreme Court (on Jan 12, 2018) went public with their grievances against Chief Justice of India Dipak Misra, saying things were not right the way India's top court was functioning. Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph, in an unprecedented press conference, said repeated attempts to alert the Chief Justice to their concerns -- including a meeting with him this morning -- had failed to make any progress which is why they decided to voice their complaints publicly.

Justice J Chelameswar	·        Second most senior judge of the Supreme Court after the Chief Justice of India ·        Became a Supreme Court judge on October 10, 2011 and will retire in June this year before the Chief Justice retires ·        Has been openly critical of the collegium system of appointing judges to the Supreme Court and high courts ·        Was in favour of the National Judicial Appointments Commission (NJAC) for appointing judges, gave a dissenting order as part of the bench that declared NJAC unconstitutional in 2015 ·        Was on the Supreme Court bench that last year ruled that privacy is a Fundamental Right
Justice Ranjan Gogoi	·        Will be the next Chief Justice of India, the first judge from the North East to do so ·        Son of former Assam Chief Minister Late KC Gogoi ·        Was on the bench that made it mandatory for those contesting parliamentary and assembly elections to declare their assets, education background and cases against them ·        Was among the seven judges who last year sentenced Justice CS Karnan, a sitting high court judge, to six months in jail for contempt. ·        Was part of the two-judge bench that struck down OBC status to Jats
Justice M B Lokur	·        Became a Supreme Court judge in 2012, due to retire in December this year ·        Was among the two judges who ruled last year that sex with minor wife is rape
Justice Kurian Joseph	·        Became a Supreme Court judge in 2013, due to retire in November this year ·        Was among the judges who ruled last year that triple talaq is unconstitutional ·        Was part of the bench that struck down the National Judicial Appointments Commission (NJAC) as illegal in 2015

[Polity] Lokpal and Lokayukta

Polity

Lokpal & Lokayukta

Introduction:

·        The institution of Ombudsman was first created in Sweden in 1809

·        “Ombud” is a Swedish term and refers to a person who acts as the representative or spokesman of another person

·        “Ombudsman refers to an officer appointed by the legislature to handle complaints against administrative and judicial action” – Donald C. Rowat

·        From Swede, the institution of Ombudsman spread to other Scandinavian countries – Finland (1919), Denmark (1955) and Norway (1962).

·        New Zealand is the first Commonwealth country in the world to have adopted the Ombudsman system in the form of a Parliamentary Commissioner for Investigation in 1962.

·        United Kingdom adopted Ombudsman – like institution called Parliamentary for Administration in 1967

·        The Ombudsman in India is called Lokpal / Lokayukta

·        Russia, China, Poland, Hungary, Czechoslovakia and Romania have created their own institutional device for the redressal of citizens’ grievances. It is called “Procurator System” in these countries.

Lokpal:

·        The Administrative Reforms Commission (ARC) (1966-1970) recommended the setting up of Lokpal and Lokayukta

·        These were to be set upon the pattern of the institution of Ombudsman in Scandinavian countries and the Parliamentary Commissioner for investigation in New Zealand.

·        Lokpal – would deal with complaints against Ministers and Secretaries at Central and State levels

·        Lokayukta (One at the Centre and one at every State) – would deal with complaints against other specified higher officials

·        The ARC kept Judiciary outside the purview of Lokpal and Lokayukta (as like in New Zealand; but in Sweden Judiciary is within the purview of the Ombudsman)

·        Lokpal would be appointed the President after consultation with the CJI, Speaker of Lok Sabha and the Chairman of Rajya Sabha – ARC recommendation

·        So far, 10 official attempts have been made to bring abut legislation on this subject. However, none of the bills were passed by the Parliament.

Lokayuktas:

·        While the Central government is still debating the establishment of the institution of Lokpal,   many States have already set up the institution of Lokayuktas

·        Odisha passed the Act in 1970 itself (but came into force only in 1983)

·        Institution of Lokayukta was established first in Maharashtra in 1971

·        Till now, 18 States and one Union Territory have established the institution of Lokayuktas.

States	Lokayukta created in
Odisha	1970
Maharashtra	1971
Rajasthan	1973
Bihar	1974
Uttar Pradesh	1975
Madhya Pradesh	1981
Andhra Pradesh	1983
Himachal Pradesh	1983
Karnataka	1985
Assam	1985
Gujarat	1986
Punjab	1995
Delhi	1995
Kerala	1999
Jharkhand	2001
Chattisgarh	2002
Haryana	2002
Uttarakhand	2002
Goa	2011

·        Structure of the Lokayukta is not same in all the States

·        Some States like Rajasthan, Karnataka, Andhra Pradesh and Maharashtra have created the Lokayukta as well as Upalokayukta

·        While some States like Bihar, Uttar Pradesh and Himachal Pradesh have created only the Lokayukta

·        Punjab and Odisha have designated officials as Lokpal.

·        Chief Minister is included within the jurisdiction of Lokayukta in the States of Himachal Pradesh, Andhra Pradesh, Madhya Pradesh and Gujarat while he is excluded from the purview of Lokayukta in the States of Maharashtra, Uttar Pradesh, Rajasthan, Bihar and Odisha

 Lokpal and Lokayuktas Act, 2011 (or) 2013:

·        Bill tabled in LS - Dec 22, 2011

·        Passed by Ls - Dec 27, 2011 (again in Dec 18, 2013)

·        Bill tabled in RS - 29 Dec, 2011

·        Bill referred to a Select Committee of RS for consideration - May 21, 2012

·        Bill passed in RS - Dec 17, 2013

·        Bill received assent from President - Jan 01, 2014

·        Came into force - Jan 16, 2014

·        Following are some important features of the Lokpal and Lokayuktas Bill, 2011, passed by Parliament:

Ø     Lokpal at the Centre and Lokayukta at the level of the states

Ø     Lokpal will consist of a chairperson and a maximum of eight members, of which 50 per cent shall be judicial members

Ø     50 per cent of members of Lokpal shall be from SC/ST/OBCs, minorities and women

Ø     The selection of chairperson and members of Lokpal shall be through a selection committee consisting of Prime Minister, Speaker of Lok Sabha, Leader of Opposition in the Lok Sabha, Chief Justice of India or a sitting Supreme Court judge nominated by CJI, eminent jurist to be nominated by the President of India on the basis of recommendations of the first four members of the selection committee

Ø     Prime Minister has been brought under the purview of the Lokpal

Ø     Lokpal’s jurisdiction will cover all categories of public servants

Ø     All entities receiving donations from foreign source in the context of the Foreign Contribution Regulation Act (FCRA) in excess of Rs 10 lakh per year are brought under the jurisdiction of Lokpal

Ø     Provides adequate protection for honest and upright public servants

Ø     Lokpal will have power of superintendence and direction over any investigation agency including CBI for cases referred to them by Lokpal

Ø     A high powered committee chaired by the Prime Minister will recommend selection of the Director, CBI

Ø     Directorate of Prosecution headed by a Director of Prosecution under the overall control of Director

Ø     The appointment of the Director of Prosecution, CBI on the recommendation of the Central Vigilance Commission

Ø     Transfer of officers of CBI investigating cases referred by Lokpal with the approval of Lokpal

Ø     The bill also incorporates provisions for attachment and confiscation of property acquired by corrupt means, even while prosecution is pending

Ø     The bill lays down clear time lines for preliminary enquiry and investigation and trial and towards this end, the bill provides for setting up of special courts

Ø     A mandate for setting up of the institution of Lokayukta through enactment of a law by the State Legislature within a period of 365 days from the date of commencement of the Act

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[Current Affairs/Polity] Ex- CJI as Governor of a State

Current Affairs

Ex- CJI as Governor

Why controversy?

Ex-CJI Sathasivam was made Governor of Kerala, after Sheila Dikshit’s (former CM of Delhi) resignation.

Criticism	Defends
Fali Nariman: This is most improper and unfortunate. I do not appreciate or approve of the idea of a former SC judge accepting a sinecure appointment, like that of a Governor. [Sinecure= An office that involves minimal duties].	Other CJIs do arbitration or consultation work for corporates after retirement (and mint crores of rupees.) However, I was planning to do farming at village. But since President has offered this position, I’ve accepted. I never lobbied to get this job.
Sathasivam had given relief to Amit Shah in fake encounter case, so Modi offered him gift of Governoship.	* When I did that case, none knew Amit Shah would become a BJP President. So there is no quid-pro-quo. * I never gave clean chit to Shah. I had shifted sorabuddin case to Maharashtra.

Anti-arguments

 Ex-CJI should not be made Governor because:

§        Independent judiciary is the basic feature of Constitution. But when Judges seek jobs or a seat in Parliament from the Executive, this basic feature is not fulfilled.

§        Promise of such post-retirement “job” can jeopardise the autonomy and accountability of the judiciary.

§        This can create breach in balance of separation of powers.

§        After retirement judges get appointed to Lokpal, NHRC etc. but those positions are eligibility requirements and autonomy in functioning.

§        Governor’s post is seen as an ‘executive patronage’- typical reserved for ‘retiring’ politicians.

§        Earlier retired judges of HC became governors. But this is the first time a retired CJI, got this job!

§        Sathasivam was also a candidate for Lokpal job. So by giving him Governorship, Modi took him out of the race.

§        Breach of protocol: In the order of precedence, sixth position for CJI and eight position for Governors. So, CJI should not accept such ‘lower’ job. It is beneath his ‘dignity’.

 Note: As per India Yearbook [Chapter 32] & Lakshmikanth Polity Book: order of precedence is following:

(1) President

(2) Vice President

(3) Prime Minister

(4) Governor in their respective states

(5) Former presidents

(5A) Deputy Prime Minister(s)

(6) CJI and Speaker of Lok Sabha

(7) Leader of Opposition in Lok Sabha and Rajya Sabha

(7A)  Holder of Bharat Ratna

(8) Governors outside their state.

Pro-arguments

 There is nothing wrong in CJI becoming governor because:

Ø     Post of governor is a constitutional post. SC is a constitutional body.

Ø     Punchhi commission: Governorship should not be given to person active in politics.

Ø     A Former CJI will be an expert in constitutional matters- provides him to utilise his expertise in public service. This can be a healthy trend.

Ø     There is no breach of protocol if retired CJI accept a lesser post, because he has retired.

Ø     President chose to accept the Modi’s proposal as there is no constitutional bar in such appointment.

 Suggested reforms (said in The New Indian Express)

v     Tribunals and commissions should be manned by a separate cadre of judges. (Instead of dolling out these jobs to retired judges- and opening floodgates for such criticism.) Govt should amend constitution for this.

v     There should be ‘cooling-off’ period of atleast two years before retired Judges to take up any government position.

v     Union government should stop treating Governor job as a sinecure for party members, sympathisers and loyalists.

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