- Selection
committee:
There is some dilution on this
score.. However, in the Bill of 2014, the Chairman of Selection Committee was
Chief Minister…in the Bill of 2015, Chairman of Selection Committee is Chief
Justice of Delhi High Court and Chief Minister, LOP and Speaker are other
members..It is clear that no appointment can be made unless supported by Chief
Justice or LOP (both are non-governmental appointees).
The Selection Committee in Central
Act of 2013 is the Prime Minister—Chairperson with
other members viz. Speaker & LOP (LokSabha), CJI or a
Judge of SC as CJI’s nominee, one eminent jurist, as recommended by the
Chairperson and Members above. Supreme Court held in NJAC case that selection
of eminent person by a majority of political members has every apprehension of
selection of said member being vitiated by political influence. The same holds
good for selection of eminent jurist above. Hence, it can be said that
inclusion of 5th member as eminent jurist selected by 3
political persons and one non-political person does not add to political
bi-partisan character of selection committee.
POST SCRIPT:
On December 04, 2015, Delhi
Legislative Assembly passed the DJLP Bill, 2015 after amending S. 3(1) thereof and
adding three additional members in selection committee:
1. An
eminent personality chosen by the Chief Justice of Delhi High Court, Speaker,
LOP and CM
2. A
Delhi High Court Judge
3. A
Former Delhi Janlokpal
- Search Committee, Public
participation etc qua Selection of Delhi JanLokpal:
Provision for Search Committee,
public participation qua Selection process may be put in place by regulations
framed by DJLP under S. 3(1) and rules framed by government under Section
30(2)(a) & (i)
- Independent investigation
agency:
Section 10(1) of the Bill of
2015 specifically sets out that Janlokpal may appoint ..as
investigation officers (called “Janlokpal Investigating Officer”). Further
Section 10 (2) says a Janlokpal Investigating Officer shall have all
the powers which are vested in a police officer while investigating offences
under the Code of Criminal Procedure, 1973 (2 of 1974). Besides, Section
10(3) says that the Chairperson and all Members of the Janlokpal and all
other officers of the Janlokpal, superior in rank to a Janlokpal Investigating
Officer, may exercise the same powers as may be exercised by such Janlokpal
Investigating Officer. Thus, section 10(1)(2)(3) provides for an independent
investigation agency under Delhi Janlokpal.
It is noteworthy that Delhi Assembly
does not have power to legislate qua police. It is further compounded by MHA
notifications of 25 July 2014 and 21 May 2015. However, judgment of Delhi High
Court in the case of Anil Kumar on 25.05.2015 is silver
lining. Jury is still out to decide whether investigation
apparatus/machinery/power emanates from Entry 2 (Police) of List 11 (State
List) or from Entry 2 (Criminal Procedure) of List 111 and consequently to
ascertain legislative competence of Delhi Legislative Assembly under Article
239AA of the Constitution.
4 Jurisdiction:
Alleged overreach in Central
domain in both bills of 2014 and 2015 are substantially same.
Delhi
JLP Bill 2014: S. 2(1)(iii) expressly included Delhi Police, DDA, MCD, NDMC (ie
Central Government Public servants). Also S.2(m) thereof, by way of implication
due 2 inclusive provision included Central Government public servant viz PM,
Minister etc. Even an ordinary anti-graft law like PCA,1988 makes no
differentiation/discrimination among various Central Government public
servants (from peon to PM). Be it DDA/Delhi Police/NDMC/MCD
employees/functionaries or PM, Central Ministers etc...POA, 1988 sway equally
applicable. Meaning thereby, if DELHI JANLOKPAL can exercise jurisdiction over
Central governments public servants qua Delhi Police, DDA, MCD, NDMC, same
holds good for other Central Public servants viz. PM, MPs, Central Ministers
etc if they indulge in corruption within NCT of Delhi.
However, the Bill
of 2014 had specifically excluded judiciary from its purview, whereas the
jurisdiction clause in the Bill of 2015 is all-encompassing. Section 7 of the Bill of 2015 reads thus:
“Subject to the provisions of this
Act, on receiving complaints from the
Government or from members of the public or suo motu, the
Janlokpal may proceed to inquire or investigate into the allegation of
‘corruption’ occurring in the National Capital Territory of Delhi.
Definition of Public servant in S.
2(m) in DJLP Bill 2014 was ALL-INCLUSIVE except Judiciary. ALL–INCLUSIVE
means that not only includes within its fold the entities specifically included
but also deemed to have included all other entities not specifically excluded.
Thus, S. 2(l) & (m) of DJLP Bill 2014 includes within its fold
all public servants (Central+NCTD) except judiciary. Central public servants of
Delhi Police/DDA/MCD/NDMC specifically included in S.2(l) of DJLP Bill 2014.
Delhi CM, Ministers, MLAs etc specifically included in S. 2(m) of DJLP Bill
2014. Rest of public servants (central + NCTD) except JUDICIARY impliedly
included in S. 2(m) of DJLP Bill 2014 owing to all-inclusive definition. S. 7
of DJLP Bill 2015 covers all public servants (Central + NCTD) including
JUDICIARY Hence, outreach, if any, in domain of centre is same in
Bills of 2014 & 2015 in view of S.
2 (l) & (m) of 2014 n S. 7 of 2015.
S. 2(m) of
DJLP Bill 2014 consists of 3 parts. 1. Gen clause ..all inclusive
2. specific
inclusion
3. specific
exclusion .
The remit of part 1 (gen clause) limited by specific exclusion in part 3
(ie judiciary)..everything else comes into its fold . Needless to
say executive power co-extensive with legislative power . If Delhi Govt’s ACB
can file a case against Central Minister (V. Moily) n MP (M. Deora) along with
Mukesh Ambani. WPs(c) 2775, 2946/2014 in Delhi HC against said
FIR filed by ACB still pending, no adjudication yet. FOR A STRONGR REASON,
Delhi Assembly can confer same power on DJLP vide a law ie DJLP Bill-2015
It is pertinent to note that even
Prevention of Corruption Act, 1988 does not exclude judiciary from its ambit.
In the case of K. Veeraswami v.
Union of India (1991) 3SCC 655 The Hon’ble SC of India held
qua HIGHER JUDICIARY that :
“Thus, in order to adequately
protect a Judge from frivolous prosecution and unnecessary harassment the
President will consult the Chief Justice of India who will consider all the
materials placed before him and tender his advice to the President for giving
sanction to launch prosecution or for filling FIR against the Judge concerned
after being satisfied in the matter. The President shall act in accordance with
the advice given by the Chief Justice of India. If the Chief Justice of India
is of the opinion that it is not a fit case for grant of sanction for
prosecution of the Judge concerned the President shall not accord sanction to
prosecute the Judge. This will save the Judge concerned from unnecessary
harassment as well as from frivolous prosecution against him. Similarly in the
case of Chief Justice of India the President shall consult such of the Judges
of the Supreme Court as he may deem fit and proper and the President shall act
in accordance with the advice given to him by the Judge or Judges of the
Supreme Court.”
In the case of Delhi Judicial
Service vs State Of Gujarat And Ors. Etc-Etc (1991 AIR 2176, 1991 SCR (3)
936) the Supreme Court of India held qua LOWER JUDICIARY that:
(A) If a judicial officer is to be
arrested for some offence, it should be done under intimation to the District
Judge or the High Court as the case may be.
(B) If facts and circumstances
necessitate the immediate arrest of a judicial officer of the subordinate
judiciary, a technical or formal arrest may be effected.
(C) The facts of such arrest should
be immedi- ately communicated to the District and Ses- sions Judge of the
concerned District and the Chief Justice of the High Court.(D) The Judicial
Officer so arrested shall not be taken to a police station, without the prior
order or directions of the District & Sessions Judge of the concerned
District, if available.
(E) Immediate facilities shall be
provided to the Judicial Officer to communication with his family members,
legal advisers and Judicial Officers, including the District & Sessions
Judge. (F) No statement of a Judicial Officer who is under arrest be recorded
nor any panchnama be drawn up nor any medical tests be conducted except in the
presence of the Legal Adviser of the Judicial Officer concerned or another
Judicial Office of equal or higher rank, it' available.
(G) There should be no handcuffing
of a Judi- cial Officer.
5
False complaint and Punishment:
The
bill of 2014 vide Sections 22(5) and 35 provided for equally stringent fine and
punishment.
6.
REMOVAL:
S. 6(1) &
(2) qua removal of Lokpal (Chairman/member) in Delhi Janlokpal Bill 2015
is analogous to removal of SC/HC Judges provided in Art.124(4)(5)
& 217(1)(b) of the Constitution. Everyone seems to be hooked on S. 6(1)
and wittingly or non-wittingly losing sight of provision envisaged in S. 6(2) .
SECTION 6 OF
DELHI JANLOKPAL BILL 2015 READS THUS:
(1) The
Chairperson or a Member of the Janlokpal shall not be removed from his office
except by an order of the Lieutenant Governor passed after an address by the
Legislative Assembly supported by a majority of the total membership of the
legislative Assembly and by a majority not less than two thirds of the members
thereof present and voting has been presented to the Lieutenant Governor in the
same session for such removal on the ground of proved misbehavior or
incapacity.
(2) The procedure
for the presentation of an address and for the investigation and proof of the
misbehavior or incapacity of the Chairperson or a Member of the Janlokpal under
sub-section (1) shall be as prescribed in the Rules.
ARTICLE 124 (4)
(5) OF THE CONSTITUTION READS THUS:
(4) A Judge of
the Supreme Court shall not be removed from his office except by an order of
the President passed after an address by each House of Parliament supported by
a majority of the total membership of that House and by a majority of not less
than twothirds of the members of that House present and voting has been
presented to the President in the same session for such removal on the ground
of proved misbehaviour or incapacity.
(5) Parliament
may by law regulate the procedure for the presentation of an address and for
the investigation and proof of the misbehaviour or incapacity of a Judge under
clause (4).
THE JUDGES (INQUIRY) ACT, 1968
(Relevent extract)
An Act to regulate the procedure for
the investigation and proof of the misbehaviour or incapacity of a Judge
of the Supreme Court or of the presentation of an address by Parliament to
the President and for matters connected therewith.
Investigation into misbehaviour or
incapacity of Judge by Committee.
3 (1) If notice is given of a motion for presenting an address
to the President praying for the removal of a Judge signed,-
(a) in the case of a notice given in
the House of the People, by not less then one hundred members of that House;
(b) in the case of a notice given in
the Council of States, by not less, then fifty members of that Council, then,
the Speaker or, as the case may be, the Chairman may, after consulting such
persons, if any, as he thinks fit and after considering such materials, if any,
as may be available to him either admit the motion or refuse to admit the same.
(2) If the motion referred to in
sub-section (1) is admitted, the Speaker or, as the case may be, the Chairman
shall keep the motion pending and constitute as soon as may be for the purpose
of making an investigation into the grounds on which the removal of a Judge is
prayed for, a Committee consisting of three members of whom -
(a) one shall be chosen from among
the Chief Justice and other Judges of the Supreme Court;
(b) one shall be chosen from
among the Chief Justices of the High Courts; and
(c) one shall be a person who is in
the opinion of the Speaker or, as the case may be, the Chairman, a
distinguished jurist
NOTE:
1.
Parliament in exercise of power under Article 124(5) has enacted Judges enquiry
Act 1956 qua procedure for the presentation of an address and for the
investigation and proof of the misbehaviour or incapacity of a Judge
2.
Why should we rule out that Govt of NCTD in exercise of rule making power will
not put in place a mechanism qua procedure for the presentation of an address
and for the investigation and proof of the misbehavior or incapacity of the
Chairperson or a Member of the Janlokpal akin to as provided in JUDGES ENQURY
ACT 1956. Constitutional law is supplemented by Central Legislative law,
AND Central/State Legislative law with
govt rules. Art 124(4) qua SC/HC judges impeachment supplemented by Parliament
Law of JI Act,1968 enacted u Art
124(5). SIMILARLY S. 6(1) of DJLP 2015 will be supplemented by Govt rules
framed under S. 6(2). Govt
rules framed under a Law requires 2 be laid in Legislature n latter can
amend/annul them.
POST SCRIPT:
On On December 04, 2015, Delhi
Legislative Assembly passed the DJLP Bill, 2015 after amending S. 6(2) of DJLP
Bill, 2015 and thus specifically mandating that for the removal of Delhi
JanLokpal, an inquiry by Delhi High Court will precede the impeachment process
in Delhi Legislative Assembly as envisaged in S. 6(1)
3.
Removal procedure envisaged in In Section 22 of Delhi Janlokpal Bill of 2014 was
thus: “The Chairman or any other member of Janlokpal shall only be removed from
his office after High Court of Delhi on a complaint of any person,
on an enquiry held in accordance with such procedure as may be formulated by
the High Court of Delhi, recommend that the Chairperson or such Member, as the
case may be, ought to be removed. “
It is no gainsaid to emphasize that there is already docket explosion in every
High Court in India. The scourge of pendency of cases is increasing
exponentially. The Section 22 of Bill of 2014 had every scope of giving rise to
“COMPLAINT EXPLOSION” qua Delhi Janlokpal in Delhi High Court seriously
affecting judicial adjudicatory functions of High Court without much
effective time left for constructively & comprehensively
enquiring into each and every complaint made to it.
CAVEAT:
TEAM ANNA
(consisting of all stalwarts like Anna, Arvind Kejriwal, Prashant Bhushan,
Shanti Bhushan, Justice Santosh Hegde, Kiran Bedi etc etc ) drafted JANLOKPAL
BILL 2011. Then there was a split in TEAM ANNA. One group led by Anna ji
decided to keep on embarking upon MOVEMENT PATH and other group
consisting of Arvind Kejriwal, Shanti Bhushan, Prashant Bhushan etc embraced
POLITICAL PATH. Parliament passed LOKPAL and LOKAYUKTA ACT, 2013 in
December 2013 just in the wake of declaration of result of the Delhi
Legislative Assembly Election-2013. ANNA GROUP accepted LOKPAL and
LOKAYUKTA ACT, 2013. Then AAP govt drafted Delhi Janlokpal bill 2014 and
endeavored to table it in Delhi Assembly on Feb 14, 2014 unsuccessfully. It is
noteworthy that neither the LOKPAL and LOKAYUKTA ACT, 2013 accepted by ANNA
GROUP nor Delhi Janlokpal bill 2014 drafted by GROUP consisting of Arvind
Kejriwal, Prashant Bhushan, Shanti Bhushan etc and unsuccessfully
tried to be tabled in Delhi Assembly on 14 Feb 2014 were exact replica of
JANLOKPAL BILL 2011 . Meaning thereby, both GROUPS had climb-down to varying extent from the DRAFT Jankokpal bill 2011.
So
REFERENCE POINT to assess the merit/demerits of Delhi Janlokpal Bill 2015
tabled in Delhi Legislative Assembly on Nov 30, 2015 is not JANLOKPAL BILL
2011. It should be examined on the touch-stone of LOKPAL and LOKAYUKTA ACT,
2013 in general and Delhi Janlokpal bill 2014 in particular.
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