Are they untouchable?

pm and Judiciary under lokpal

‘Be you ever so high, the law is above you.’ Thomas Fuller’s exhortation over 300 years ago is as valid today as it was then. In a democracy, every one is equal, but some, it appears, are more equal than others and so deserve a cachet of immunity. The proposed Lokpal bill has been agitating the whole nation for quite some time and now the representatives of the civil society and the government are virtually on warpath on the issue of bringing the prime minister and the higher judiciary within the ambit of Lokpal’s jurisdiction. The government is firm on keeping the two out which is not acceptable to the representatives of the civil society.

Surprisingly, the prime minister was included in the government’s own draft bill but now it says that it revised its opinion after two former chief justices of India, viz., M N Venkatachaliah and J S Verma, known for their integrity, expressed the view that the prime Minister should be kept out. Seven bills were introduced in Parliament for the setting up of Lokpal since 1968 and three of them --1977, 1989 and 1998 bills -- covered the prime minister. Manmohan Singh himself has said that he wanted to be under the jurisdiction of Lokpal.

Legally speaking, the prime minister does not enjoy any immunity under the Constitution from prosecution. Even the Prevention of Corruption Act does not make any such exception. The Constitution bequeaths immunity from prosecution only to the President and the governor as they act on the recommendations of the council of ministers. Thus, the President or the governor is the titular head with the real power reposed in the council of ministers.

 Besides, the prime minister or the chief minister is only ‘first among equals’. So, if a minister can be prosecuted for omissions and commissions, why not the prime minister? The government argues that if the prime minister is under cloud and being investigated, then it would create instability at the top. But the argument does not hold water as the then prime minsters were investigated in the Bofors and JMM cases but it did not make them dysfunctional. Similarly, chief ministers have been investigated and chargesheeted but they firmly remained in the saddle.

Lalu Prasad resigned as chief minister of Bihar in July 1997 only after the CBI court issued a non-bailable warrant of arrest against him.

So far as the higher judiciary is concerned, the Supreme Court has fortified its position by judicial pronouncements. In the Veeraswami case (1991), it held that in case of allegation of corruption against a Supreme Court or high court judge, no FIR can be registered or investigation started without the prior permission of the Chief Justice of India. The reasoning was that if such a protection is not given, the police would harass judges. However, it did not give any example of a judge being harassed by the police earlier. For almost 19 years, no permission was given for registering an FIR or starting investigation against any judge. Only a few months back, the CJI granted sanction to prosecute justice Nirmal Yadav on the day of her superannuation.

No interrogation

In the Ghaziabad PF scam case, the CJI did not allow the CBI to interrogate the accused judges, but directed them to send interrogatories to him which was forwarded to the accused and their written replies were obtained. This is not how the interrogation is done.

Even the CJIs, known to be men of unquestionable integrity have refused to give permission despite incriminating evidence against judges. P Chidambaram himself sought permission to register an FIR against justice Amit Sen Gupta of the Calcutta high court but then CJI M N Venkatachaliah did not give permission. The result was that the government had to wait for his retirement and the evidence against him was so strong that his residence was raided the very next day of his retirement and he was arrested.

Judges are public servants under section 21 of the Indian penal code, and hence accountable like any other public servant. In the Veeraswami case, the Supreme Court itself admitted that judges are public servants, but, nonetheless, it altered the constitutional scheme of the separation of powers by divesting the police of their power to investigate. If a person is falsely implicated by the police, ultimately, it is the court which has to decide. There cannot be any investigation unless the FIR is registered, and evidence cannot be found without investigation.

The Judicial Standards and Accountability Bill has tried to address the issue of judicial corruption to some extent and it has some laudable provisions such as initiating investigations into charges against any judge on the complaint of any ordinary citizen and providing a statutory status to the Restatement of Judicial Values. But other provisions weaken the bill. In case of complaint against any high court judge, a committee of two sitting judges and a former chief justice of that high court will inquire into the charges. The apprehension is that a committee of peers may not be objective in investigation. On this very ground, Justice Sirpurkar had to recuse from the committee formed to inquire into the charges against justice P D Dinakaran as the two had worked together earlier.

Another argument is that if the prime minister and the higher judiciary are covered under Lokpal, it will open the floodgate for frivolous complaints. The apprehension is not unwarranted but it is proposed that a seven-member bench of Lokpal would first hear the complaint and decide whether there was adequate prima facie evidence against the prime minister or the judge. If not, the petition will be dismissed. Accountability makes an institution strong.