A basic postulate of the rule of law is that all laws placed on the statute book must conform to the Constitution. A law that violates the Constitution is void ab initio and, even if it were passed, it would never stand the test of judicial scrutiny. Since the Keshvananda Bharati case of 1973, the Constitution has certain features which are inviolable. One such feature is the principle of ‘separation of powers’ among the three organs of the State — the legislature, the executive and the judiciary.
Today, the government is cornered. A cocktail of street theatre and a frenzy largely whipped up by the media forced it to bring a Bill before the Parliament which is unconstitutional. The proposed Lokpal Bill will comprise eight members; four will be members of the judiciary — serving judges of the Supreme Court and the Chief Justices of high courts. At the same time, it will essentially be an investigative agency. In other words, it will be some kind of police. However, under the Criminal Code of India, the oldest law on the statute book, the police are a part of the permanent executive of the State. So like all executive authorities, they are fully accountable to Parliament.
Members of the lokpal will be selected by a committee comprising, inter alia, the Chief Justice of the Supreme Court. Let us assume that a candidate who has been bypassed for membership to the lokpal were to agitate the issue in a court of law. This will challenge the independence of the judiciary, as the Chief Justice of India will be a part of the lokpal’s selection committee. Also, as per the Constitution, the working of an administrative body like a selection committee can be called into question in Parliament. Judges of the Supreme Court and high courts, however, enjoy complete immunity under the Constitution. It is debatable whether this immunity can be extended if they cease to be members of the higher judiciary and allow themselves to become members of the executive.
According to the doctrine of limited authority of all public functionaries under the rule of law, a minister has neither identity nor authority outside of his assigned ministry. Similarly, a judge has no role or authority outside the court of law where he has been appointed. The lokpal cannot be an authority outside the control of a relevant ministry which must be fully accountable to Parliament. The only executive authority outside the control of the Parliament is a Chief Martial Law Administrator.
Now let us examine the actual functioning of the lokpal. After having carried out an investigation, it will file a case in special courts. Such courts are generally manned by subordinate members of the judiciary. If the investigation were to be supervised by Chief Justices of the high courts and the prosecution were also to be authorised by them, the presiding judges of the special courts can hardly be expected to act without fear or favour. Ironically, the impartiality of the judiciary will be compromised.
The lokpal will be empowered to conduct raids on suspected ministers, members of Parliament, senior government officials, chairmen of public sector banks and PSUs, generals, admirals and air marshals and so on. The raids will be authorised by Supreme Court judges and high court Chief Justices, should there be a suspicion of incriminating ‘documents’ in their possession. Admittedly, the police have powers under the Code of Criminal Procedure to search and seize property but only in cases of serious offences. And the exercise of such draconian powers is subject to elaborate checks and balances, which is the foundation of the rule of law. No such checks and balances are prescribed under the Bill.
If the highest judiciary were to be involved in investigation, there will be no protection for the accused public servant in case the lokpal police were to misuse their powers. Second, it will be a virtual subordination of the executive and the legislature to the judiciary, a travesty of the rule of law and the Constitution. Therefore, I make a humble plea to Parliament which is considering the ‘official’ Lokpal Bill: please think twice before passing it..
Ashok Kapur is a retired IAS officer
(The views expressed by the author are personal)