Friday, March 14, 2014

Today's Editorial 15 March 2014

                   Lokpal-never ever!

Source: By Ashok Kapur: The Statesman
The improbable has happened. In the aftermath of the results of the Delhi election, the Centre appears to have panicked and pressured the Lok Sabha to pass the Lokpal Bill into an Act. The Government has been badly advised.

In principle, the need for steps against corruption, including legislative, is unexceptionable. But the remedy prescribed will be worse than the disease that is sought to be cured by a Government that felt cornered. The Bill was not properly thought through and the Lokpal will not make any difference but only create legal hurdles and a constitutional deadlock. It will only create a monster which will be difficult to control.

In matters legislative, one must always be cautious as an unjust law once incorporated in the statute book can be a source of endless problems for not only the Government but society at large. The founding fathers of the Republic drafted arguably the finest Constitution in the world after three years of assiduous labour.

It was Bacon, one of the greatest jurists of all times, who had cautioned that “a bad law is the worst tyranny.” The first Jan Lokpal Bill was a piece of highly toxic legislation. Undeniably, some of its toxicity was neutralized by the Government in the revised version of the ‘official’ Lokpal Bill. But it still remained largely unconstitutional.

All laws, including the Lokpal Act must conform to the fundamental law of the land ~ the Constitution.  A law in violation of the same will turn out to be a dead letter in the sense that it will be void ab initio, once challenged in a court of law. The paradox must be recognized. Ostensibly, the Lokpal was originally conceived to liberate the common man from the tyranny of the petty bureaucrat ~ the omnipotent ‘inspector’.  It will achieve no such thing.

The Lokpal Act violates the ‘basic structure’ of the Constitution, first enunciated by a Full Bench of the Supreme Court in the celebrated case of Keshvananda Bharati almost four decades back. It ruled that the Constitution alone is sovereign, and no organ of the State can violate it ~ not the executive, not the judiciary, not even Parliament. Two features of the ‘basic structure’ are relevant ~ “separation of powers” and the observance of the  “basic norms of democracy”.

“Separation of powers” stipulates that just as the executive cannot encroach on the adjudicating powers of the judiciary, likewise the unelected judiciary ought not to be entrusted with executive authority. Secondly, it is a basic norm in democratic jurisprudence that all executive authorities must be accountable. The only authority that is not accountable is the Chief Marshal Law Administrator.

The Lokpal will be an executive authority not accountable to anyone, not even to Parliament. This will be a violation of the basic norms of democratic functioning. The Lokpal shall be selected by an executive authority, indeed a selection committee comprising, inter alia, sitting judges of the Supreme Court. This is again unconstitutional.

The selection committee will be an administrative committee under the control of the executive. The judiciary cannot be entrusted with executive functioning. To do so would be a violation of the ‘basic structure’. There is every probability that the Chief Justice of India may, in his wisdom, refuse to nominate a member of the highest court to an executive committee.

The Lokpal shall be a multi-member body which may be headed by the Chief Justice of India or a judge of the Supreme Court. This would be a travesty of the Constitution. It will essentially be an investigative body which shall investigate complaints against public servants under the Criminal Code. The code, applicable in all the states, does not envisage any role for the Supreme Court.

The Code exclusively entrusts the police with investigative authority. The respective High Courts have been entrusted with blanket powers under the Code to pass any order on the executive or a subordinate court “in the interests of justice”. But there is one limitation that has been imposed, ironically enough, by the Supreme Court itself.

 The respective High Courts cannot interfere during the course of police investigation. Hence, to confer investigative powers on the members of the highest judiciary, as the Lokpal Act stipulates, would be tantamount to turning the Criminal Code of the country, the oldest law in the statute book, upside down.

At present, the judiciary neither monitors nor supervises police investigation. It is the settled law of the land that the judiciary comes into the picture only after the investigation is complete. The Lokpal Act provides that once the Lokpal police completes the investigation, the charge-sheet will be submitted in the court of a special magistrate, who is a member of the subordinate judiciary. If the investigation were now to be supervised by Supreme Court judges, the accused is hardly likely to get any justice in the court of a subordinate magistrate.

At present, the judges of the Supreme Court and the High Courts enjoy complete immunity from any discussion about their performance in Parliament. There is a complete bar to any question being raised about their conduct as members of the higher judiciary. But this protection is available to judges qua judges, i.e.  judges acting judicially. Once the judiciary allows itself to be dragged into executive functioning, this immunity may not be available. Imagine the performance of the Justices of the Supreme Court, acting as Lokpal being discussed in Parliament.

The Constitution confers concurrent Writ jurisdiction on the High Courts and the Supreme Court whereby a citizen can directly approach these courts if an executive authority violates any of his Fundamental Rights. In terms of the Constitution, the High Court can summon any executive authority to appear before it and explain. Once the Supreme Court judges start acting as executive authorities and suppose a citizen were to approach the High Court, it  could turn into a constitutional crisis if  High Courts start summoning Supreme Court judges.

The Act provides that not less than 50 per cent members shall be appointed on the basis of their caste or community, in other words a caste-based quota. Even judicial members of the Lokpal may have to be appointed on the basis of their caste. Mercifully, the judiciary is free from the virus of caste and community-based reservations. This would push the virus through the backdoor into the only institution in India that recognizes merit as the sole criterion of appointment.

The Lokpal will be authorized to ask the Central Government to order the suspension of any public servant against whom investigation is launched. The Centre shall ordinarily comply with the Lokpal’s directions. In the case of Central services and all-India services, the President is the appointing and disciplinary authority. Thus, the President of India shall ‘ordinarily’ be bound by the directions of the Lokpal!

In sum, the Lokpal will be an extra-constitutional authority. In the historical perspective, India still has a fledgling democracy. It is still not late for the Government to retrace its steps and undo the Act. To combat corruption, the country needs an Ombudsman and not a Lokpal.

No comments:

Post a Comment