Ashok Kapur IAS
The unexpected results of the Delhi assembly elections have resurrected the debate about the moribund Lokpal Bill. It will be recalled that the Bill was drafted under extreme street pressure in the wake of protest against corruption in public life.
In principle, the need for steps against corruption, including legislative is unexceptionable. But the remedy proposed was worse than the disease by a Government that felt cornered. And the Lok Sabha in its wisdom, rushed through a Bill that was unconstitutional even to begin with.
The Rajya Sabha though had very wisely subjected it to close examination and refused to rush through it. In matters legislative, one must always be cautious as an unjust law once thrust in the statute book can be a source of endless problems for not only the government but the society at large. It needs to be borne in mind that 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 thus cautioned modern democracies: “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, later passed into an Act. But it still remains largely unconstitutional.
All laws must conform to the fundamental law of the land – the Constitution. Any law in violation of the same will be a dead letter in the sense that it will be void ab initio, once challenged in a court of law. The paradox must always inform all debate on the issue. Ostensibly, Lokpal was conceived to liberate the common man from the tyranny of the petty bureaucrat – the omnipotent ‘inspector’. It will do no such thing
The ‘basic structure’ of the Constitution was first defined by a Full Bench of the Supreme Court in the celebrated case of Keshvananda Bharati almost four decades back. According to it, 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 in context – ‘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 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 the Parliament. This will be a violation of the basic norms of democratic functioning. The Lokpal shall be selected by 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’ of the Constitution. There is every probability that the Chief Justice of India may refuse to nominate a member of the highest court to an executive committee.
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. Lokpal will essentially be an investigating agency which shall investigate complaints against public servants under the Criminal Code of the country. The Code, applicable in all the states does not envisage any role for the Supreme Court.
The Criminal Code exclusively entrusts the police with investigative authority. The respective High Courts have been entrusted with blanket powers to pass any order on the executive or a subordinate court “in the interests of justice”. But there is one limitation 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 contemplates, would be tantamount to turning the Criminal Code of the country upside down.
The judiciary does not supervise police investigation. It is the settled law of the land that the judiciary comes into the picture only after the investigation is complete. Once the Lokpal police complete 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 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 scrutiny of their performance in the Parliament. There is a complete bar to any question being raised about their conduct as members of 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 will be unavailable. Imagine the performance of the Chief Justice of India, acting as Lokpal being discussed in Parliament!
The Constitution confers concurrent Writ jurisdiction on the High Court (and the Supreme Court) whereby a citizen can directly approach them in case an executive authority violates any of his Fundamental Rights. Legally, the High Court can summon any official to appear before it and explain. Once Supreme Court judges act as executive authorities, and a citizen were to approach the High Court, it would be a Constitutional anomaly if high courts start summoning Supreme Court judges!
The Act provides that no fewer than fifty percent 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 – so far at least – free from the poison of caste and community-based reservations. This would inject, through the backdoor the poison of caste in the only institution 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 Central Government shall ordinarily comply with the Lokpal’s directions. In the case of Central services and all-India services, the President is the appointing and the disciplinary authority. Thus, the President of India will ‘ordinarily’ be bound by the directions of the Lokpal!
In sum, the Lokpal will be an extra-Constitutional authority. India’s democracy is still a fledgling one, in the historical perspective. It must guard itself against such legal adventurism.