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We wrote an FAQ on the Lok Pal Bill for Rediff.  http://www.rediff.com/news/special/special-parliamentary-committee-cannot-study-lokpal-bill-in-10-days/20110822.htm The Lok Pal Bill has been referred to the Standing Committee of Parliament on Personnel, Public Grievances, Law and Justice.  In this FAQ, we explain the process of these Committees. What is the role of such standing committees? The system of departmentally related standing committees was instituted by Parliament in 1993.  Currently, there are 24 such committees, organised on the lines of departments and ministries.  For example, there are committees on finance, on home affairs, on defence etc.  These standing committees examine Bills that are referred to them.  They also examine the expenditure plans of ministries in the Union Budget.  In addition, they may examine the working of the departments and various schemes of the government. How is the membership of these committees decided? Each committee has 31 members: 21 from Lok Sabha and 10 from Rajya Sabha.  Parties are allocated seats based on their strength in Parliament.  The final membership is decided based on the MP’s area of interest as well as their party’s decision on allocating the seats. Who chairs the committees? Of the 24 committees, 16 are administered by Lok Sabha and eight by Rajya Sabha.  The Chairperson is from the respective House.  Political parties are allocated the chairs based on their strength in Parliament.  Some committees such as home affairs, finance and external affairs are customarily chaired by a senior member of an opposition party. What will the Standing Committee do with the Lok Pal Bill? The Committee has invited comments and suggestions from the public on the Bill.  Comments can be sent to Mr. KP Singh, Director, Rajya Sabha Secretariat, 201, Second Floor, Parliament House Annexe, New Delhi -110001.  These may also be emailed to kpsingh@sansad.nic.in or rs-cpers@sansad.nic.in.  The Committee will examine the written memoranda.  They will also invite some experts and stakeholders for oral evidence.  Based on its examination, the committee will prepare a report with its recommendations on the various provisions of the Bill.  This report will be tabled in Parliament. Is the report decided by voting? No.  The committee tries to form a consensus while preparing the report.  However, if some members do not agree on any point, they may add a dissent note.  For example, the committee on the Civil Liability for Nuclear Damages Bill had dissent notes written by MPs from the left parties.  The Women’s Reservation Bill also had dissent notes from a couple of members. Are the committee’s recommendations binding? No.  The Committee system was formed recognising that Parliament does not have the time for detailed examination and public feedback on all bills.  Parliament, therefore, delegates this task to the committee which reports back with its recommendations.  It is the role of all MPs in each House of Parliament to examine the recommendations and move suitable amendments.  Following this, Parliament can vote on these amendments, and finalise the Bill. Can you give examples when the Committee’s work has resulted in significant changes? There are many such instances.  For example, the standing committee on science and technology examined the Civil Liability for Nuclear Damages Bill.  The committee made several recommendations, some of which increased the potential liability of suppliers of nuclear equipment in case of an accident.  All the recommendations were accepted.  Similarly, the Seeds Bill, which is currently pending in Rajya Sabha has seen several major recommendations by the Committee on Agriculture.  The government has agreed to move amendments that accept many of these recommendations. Are all Bills referred to Standing Committees? Most Bills are referred to such committees but this is not a mandatory requirement before passing a Bill.  In some cases, if a Bill is not referred to a committee and passed by one House, the other House may constitute a select committee for detailed examination.  Some recent examples include such select committees formed by the Rajya Sabha on the Prevention of Torture Bill, the Wakf Amendment Bill, and the Commercial Divisions of High Courts Bill.  There are also some instances when a Bill may be passed without the committee process. Is it a good idea to bypass the committee process? In general, this process provides a platform for various stakeholders to provide their inputs.  In the Lok Pal case, a few influential groups such as the India Against Corruption (IAC) and the National Campaign for People’s Right to Information (NCPRI) have voiced their views.  However, there may be other points of views of persons who do not have similar access to the media.  The Standing Committee provides equal opportunity to everyone to write in their memoranda.  It also allows parliamentarians to devote a significant amount of time to understand the nuances of a Bill and make suitable modifications.  Thus, the standing committee system is an opportunity to strengthen legislation in an informed and participatory manner. Is it feasible to compress this process within 10 days and get the Lok Pal Bill passed within the current session of Parliament? There should be sufficient time for citizens to provide inputs to the committee.  The committee has to examine the different points of view and find suitable provisions to achieve the final objectives.  For example, there are divergent views on the role of Lok Pal, its constitution, its jurisdiction etc.  The Committee has to understand the implications of the various proposals and then make its recommendations.  It has been given three months to do so.  Typically, most committees ask for an extension and take six to eight months.  It is not practical to expect this process to be over within 10 days. Should civil society demand that the government issue a whip and pass the Jan Lok Pal Bill? Everyone has the right to make any demand.  However, the government is duty bound to follow the Constitution.  Our Constitution has envisaged a Parliamentary system.  Each MP is expected to make up their minds on each proposal based on their perception of national interest and people’s will.  Indeed, one may say that the best way to ensure a representative system is to remove the anti-defection law, minimise the use of whips, and let MPs vote their conscience.  That may give us a more accountable government.

This week, an in-house inquiry committee was constituted to consider a complaint against the current Chief Justice of India.  Over the years, three mechanisms have evolved to investigate cases of misconduct, including cases of sexual harassment, misbehaviour or incapacity against judges.  In this blog, we summarise the procedure for investigating such charges against judges of the Supreme Court.  

  • In-house procedure (1999): The Supreme Court has an in-house process to deal with allegations against a judge relating to the discharge of his judicial function, or with regard to his conduct or behaviour outside court.   
  • Sexual harassment guidelines: In 2013, Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.  Subsequently, the Supreme Court framed regulations for protection of women against sexual harassment in the Supreme Court. Under the regulations, the CJI is required to constitute a Gender Sensitisation and Internal Complaints Committee (GSICC).  The GSICC will include 7-13 members including: (i) one or two judges of the Supreme Court, and (ii) up to two outside members (having experience in social justice, women empowerment, gender justice, among others) to be nominated by the CJI.  The Regulations require the majority of the members of GSICC to be women.  As of 2018, the GSICC has received 13 complaints, out of which 10 have been disposed of. 
  • Removal for proven misbehaviour or incapacity: Charges of misconduct may also be investigated in the context of proceedings for removal of a judge.  Article 124(4) of the Constitution of India provides that a judge can be removed only by Parliament on the basis of a motion in either the Lok Sabha or Rajya Sabha.  The procedure for removal of judges is elaborated in the Judges Inquiry Act, 1968.  Till date, no judge of the higher judiciary has been impeached under this process. 

Table 1: Process for investigation of charges against a Supreme Court judge

 

In-house Procedure of Supreme Court

2013 SC Sexual Harassment Regulation

Removal Proceedings

Who may file a complaint

  • Complaint of misconduct may be filed by any person.
  • Written complaint of sexual harassment by a woman.
  • Signed notice by at least 100 members of the Lok Sabha, or 50 members of the Rajya Sabha on charges of misbehaviour or incapacity by a judge. 

Persons to whom complaint must be filed

  • CJI or President of India
  • GSICC
  • Presiding Officer of the relevant House of Parliament

Preliminary Inquiry

  • The CJI is required to determine whether the complaint is either frivolous or serious. If the complaint is frivolous or relates to a pending case, no further action will be taken.
  • If the CJI finds that the complaint involves serious misconduct or impropriety, he will seek the response of the concerned Judge. 
  • Based on the response and supporting materials, if the CJI finds that the complaint needs a deeper probe, he will constitute an inquiry committee. 
  • If the GSICC is satisfied that the complaint is genuine, it will constitute a three-member Internal Sub-Committee to conduct an inquiry into the complaint. 
  • If the notice is in order, the Presiding Officer will constitute a three-member committee to investigate the complaint.

Composition of Inquiry Committee

  • The Committee will comprise three judges including a Judge of the Supreme Court and two Chief Justices of other High Courts.
  • The Committee will comprise members of the GSICC or persons nominated by the GSICC, with majority members being a woman and an outside member.
  • The committee will comprise a Supreme Court judge, Chief Justice of a High Court, and a distinguished jurist. 

Time limit for submission of inquiry report

  • No specific time limit provided.
  • To be completed within 90 days of the constitution of the Internal Sub-Committee, and forwarded to the GSICC within 10 days of completion. 
  • To be submitted to the presiding officer within 90 days.

Findings of the Committee

  • The Committee may report to the CJI that:

​1.  there is no substance in the allegation made, or,

2.  there is substance in the allegations but the misconduct is not of such serious nature as to warrant removal, or,

3.  the misconduct is serious enough to initiate removal proceedings against the judge. 

  • If the committee concludes that the allegation has been proved, it will submit its report to the GSICC to pass appropriate orders within 45 days.
  • If more than two thirds of the GSICC members differ from the conclusion of the Committee, it will, after hearing the complainant and the accused, record its reasons for differing and pass orders.
  • After concluding its investigation, the Committee will submit its report to the presiding officer, who will lay the report before the relevant House.

 

Action taken upon submission of report

  • If the finding is under category (2) above, the CJI may call and advise the Judge accordingly and direct that the report be placed on record.
  • If the finding is under category (3) above, the CJI may ask the judge to resign or seek voluntary retirement.  If the judge refuses to resign, the CJI may decide to not allocate any judicial work to the judge concerned. 
  •  Further, the CJI may inform the President of India and the Prime Minister of his reasons for the action taken and forward a copy of the inquiry report to them.
  • The GSICC has the power to: (i) to pass an order of admonition (reprimand), which may also be published in the court precinct, or (ii) pass an order to prohibit the accused from harassing or communicating with the complainant, or (iii) pass any other order to end the sexual harassment faced by the complainant.
  • GSICC may also recommend to the CJI to pass orders against the accused, including: (i) prohibiting entry of the accused into the Supreme Court for up to a year, or (ii) filing a criminal complaint before the concerned disciplinary authority governing the accused.
  • If the report records a finding of misbehaviour or incapacity, the motion for removal will be taken up for consideration and debated. 
  • The motion is required to be adopted by each House by a majority of the total membership of that House and a majority of at least two-thirds of the members of that House present and voting.
  • Once the motion is adopted in both Houses, it is sent to the President, who will issue an order for the removal of the judge.

Process for Appeals

  • No specific provision.
  • Any aggrieved person may make a representation to the CJI to set aside/modify the orders passed by the GSICC.  The CJI also has the power to issue any other orders in order to secure justice to the victim.
  • No specific provision.

Sources: Report of the Committee on In-House Procedure, December 1999, Supreme Court of India; Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013; Article 124(4), Constitution of India; Judges Inquiry Act, 1968 read with the Judges Inquiry Rules, 1969; PRS.