Re: Indian Corruption - Country needs "National Judicial Commission" (Lokpal Institution is not suitable for Judical accountability) - Enough is Enough Mr. Prime Minister, Please follow Brave Lal Bahadur Shastri !!! Aab To Jago Deshvasio

[Surendra Srivastava]

                     National Campaign Against Corruption
      Time For Decisive Action - Please spare only few minutes. Please circulate
 
Country will ever be grateful to you for your participation. We really think this is an important cause as the corrupt posed a greater threat to the country than terrorists
 
                                              www.killcorruption.org
 
                                                  www.loksatta.org
 
             Join hands to build an Aandolan against Bhrashtaachaar in India.
 
                                  भारत में व्यवस्था परिवर्तन की आवश्यकता
 
"Out of 543 MPs that we have in the Lok Sabha, 154 have criminal cases slapped against them. Out of them about 50 have serious criminal cases that are non bail able offences. Was wondering, where are we headed !!!" ..........In Supreme Court

 

National Judicial Commission is Needed for Making Judiciary Accountable and Improve Quality of Justice Delivery while Independent - Transparent - Accountable Lokpal Institution for investigation and prosecution of Corrupt in Executive (s) and Legislature (s). Eminent and credible Jurists along with Lok Satta are preparing a NJC model. We will soon reach out political parties & MPs to get the constitution Amended.

 

Background........

 

Independence, impartiality, integrity and competence of the judiciary are at the core of our Constitutional order. Higher Judiciary has been accorded a central role in our state structure as a vital institutional safeguard to defend the Constitution, protect liberty of citizens and check the abuse of authority. The higher judiciary has by and large fulfilled this cardinal role and acted as the sentinel of the Constitution. The recent national consensus on the extremely contentious issue of Ayodhya to the effect that the matter should best be left to the Courts and due process of law is a testimony to the nation’s faith in higher judiciary. On  critical questions like reservations, inter-state disputes and the application of Article 356 or Tenth Schedule of the Constitution, the mature and balanced role of Courts in reconciling various interests and upholding the spirit and letter of the Constitution has been of inestimable value in dousing flames of passion and prejudice, and bringing peace and harmony to society.

 

An extremely complex, diverse, federal polity which is struggling to reconcile short-term expediency with long-term imperatives of nation building needs a credible, independent and impartial judiciary. The nation has so far been well-served by the judiciary. But certain distortions and glaring inadequacies are endangering the credibility of higher judiciary.

 

The Supreme Court judgments relating to appointments of judges of higher courts and the subsequent practice of the judiciary having the final say in matters of judicial appointment have raised questions of Constitutional propriety. Even more important, there is significant disquiet about the quality of judges appointed. In recent times, serious questions have been raised about the impartiality, and ability of judges of higher courts. Of late, even the integrity of some of the judges has come under public scrutiny. The recent allegations of serious impropriety or even the taint of corruption, of some of the highest judicial functionaries in the land is a source of grave concern to all lovers of liberty and champions and constitutionalism and rule of law.

 

Protecting the credibility of the judiciary is a matter of great national importance. If the general public loses confidence in the integrity and impartiality of the higher judiciary, there is every danger that the nation will fall apart. Therefore protecting the image of the higher courts, enhancing the quality of judges, and ensuring their impeccable conduct are matters of great public importance which need to be addressed immediately..

 

The three central issues that need to be addressed in this regard are as follows:

 

1. How to create a mechanism for appointment of persons of highest ability, impartiality and integrity are elevated as judges of higher courts?
2. What are the institutional mechanisms to effectively address allegations of wrong doing against judges, so that judicial credibility protected?
3. How to encourage the best and the brightest to enter the judiciary at all levels?

One of the proposal ....

 "A National Judicial Commission for India"

 

The Supreme Court of India and the High Courts set the standard for judicial conduct and competence in the country. We must see that only candidates of the highest integrity and ability are appointed to these courts and that, once judges, they perform their duties with honesty, dedication and skill. This requires a degree of scrutiny in judicial appointments and oversight impossible under the current system. It is vital that we create a National Judicial Commission, combining input from the elected branches of government and the judiciary, to appoint and oversee the judges of the Supreme Court and High Court.

 

The experience of diverse jurisdictions researched, supports the inclusion of the Prime Minister and legislators in the appointment process. The challenge is to ensure that the judiciary remains independent of other branches of government in fulfilling its duties, while benefiting from the input and vigilance of the peoples’ representatives. We cannot expect the judiciary to appoint itself and then oversee itself. Both these elements are inappropriate in a democracy. One optional solution could be a National Judicial Commission (NJC) drawn from the executive, legislature and judiciary.  One acceptable composition of NJC could be a seven-member NJC with the following members:

 

·        The  Chairman of the Rajya Sabha (Vice-President of India) as Chair of the Commission

·        The Prime Minister or the Prime Minister’s nominee

·        The Speaker of the Lok Sabha

·        The Law Minister

·        The Leader of the Opposition in the Lok Sabha and Rajya Sabha

·        The Chief Justice of India

 

In matters relating to the appointment and oversight of High Court judges the Commission could also include the following members:

 

·        The Chief Minister of the concerned State

·        The Chief Justice of the concerned High Court

 

The NJC can be authorized to solicit views of jurists, representatives of the Bar and the public in any manner the Commission deems fit.  Also, NJC can have the option of inviting two jurists to be non-voting members.

 

One question which needs to be addressed is whether the advice of NJC should be binding on the President. In this respect, the procedure adopted for the Judicial Appointments Commission of England and Wales seems well-suited for our situation.  Upon the Commission’s recommendation, the President can either appoint the candidate, or return to the Commission for further consideration, or reject the candidate.  Rejection or returning a name should be backed by reasons recorded in writing and communicated to the Commission.  If rejected, the Commission cannot resubmit the candidate. But if a name is simply returned, the Commission would be free to resubmit a candidate returned for reconsideration.  The President should then appoint a candidate whose name has been resubmitted for appointment.

 

Then we need to address the question of oversight of the higher judiciary. Clauses (4) and (5) of Article 124, Article 217 and Article 218 govern the procedure for removal of judges of Supreme Court and High Courts. However, past experience shows that this mechanism has failed, and the Parliament could not effectively exercise oversight functions in respect of judiciary.  Given this background, it would be most appropriate if NJC is entrusted with the responsibility of oversight of judiciary.  The Judges Enquiry Act could be suitably amended to empower NJC to constitute a committee comprising of a judge of the Supreme Court, a Chief Justice of a High Court and an eminent jurist to investigate into complaints.  Upon receiving the report of the Committee, NJC would consider it, duly giving an opportunity to the judge concerned to present his case.  The NJC can then recommend dropping of charges, or censure or removal.  Dropping of changes or censure would require a majority support, while removal would require support of two-thirds of the members of NJC.  The recommendation made by the NJC will be binding on the President.  Such a procedure will harmoniously reconcile the requirement of restraint and balance in dealing with the higher judiciary with the need for effective, independent and bipartisan oversight of judiciary.

 

The creation of such a Commission will require changes in three places in the existing laws. Any change in the process of appointment for the Supreme Court will require that Article 124 of the Constitution be amended to provide for a National Judicial Commission. A similar change will have to be made to Article 217. Also, since the commission is to have the authority to oversee and discipline judges, further changes will need to be made to Article 217 (Clause 4). As per Article 218, such a change would apply equally to the High Courts. Finally, the Judges (Inquiry) Act, 1968 dictates the procedure for an inquiry into judicial misconduct currently in use. This must be changed to reflect the use of a standing Commission, responsible for the inquiry into as well as the removal of judges against whom charges of corruption or gross incompetence are established.

--

The Answer to "Bad Politics" is "Good Politics"  Not "No Politics"  - Dr. JP, Lok Satta Aandolan

 

Disclaimer: My mailing list is intended to create awareness, not spam. If you'd rather not receive these messages, do let me know.

Regards

Surendra Srivastava
Volunteer - Lok Satta Aandolan
Base Unit-4, Bycula Service Industries Premises,
Dadoji Konddeo Road, Bycula (East), Mumbai 400027
Tel: 00 91 22 2377 2279
Email: sure...@loksatta.org.in
Wikipedia: http://en.wikipedia.org/wiki/Surendra_Srivastava
Facebook: Surendra Srivastava on Facebook
Twitter: Surendra Srivastava (suren1990) on Twitter
Web: http://www.loksattamovement.in/abt_whyloksatta.htm
Web: www.killcorruption.org
Film:  http://www.youtube.com/watch?v=drK3ggiIuvo

 

"SAVE PAPER - THINK BEFORE YOU PRINT!"