The Supreme Court has scrapped the Section 66A of the Information Technology Act, calling it “unconstitutional”.
Since Independence, the Indian State has been nibbling away at citizen’s rights through laws like the Lokpal Act and now with the burial of the Section 66A, the Lokpal Act poses a threat to the government.
The lokpal will be an unaccountable executive authority. The panel will be selected by a selection committee comprising sitting judges of the Supreme Court (SC).
This is unconstitutional as the lokpal panel will be an administrative committee. The judiciary should not be entrusted with executive functioning. Even though the lokpal will be a multi-member body headed by the chief justice or a judge of the Supreme Court, it will still be unconstitutional.
According to the Constitution, the higher judiciary enjoys immunity from any discussion in Parliament about their functioning. But once the judiciary is dragged into executive functioning, this immunity may not be available to it.
The Constitution confers concurrent writ jurisdiction on high courts (along with the Supreme Court) whereby a citizen can directly approach these courts in case an executive authority violates her fundamental rights.
Once SC judges start acting as executive authorities, it could result in a constitutional crisis if the high courts start questioning SC judges.
The Act provides that no less than 50% judicial members will be appointed on the basis of their caste or community. The judiciary is free from the cancer of caste and community divisions.
So this development would not be good for an institution that till now has recognised merit as the sole criterion of selection.
The lokpal will have powers to ask the Centre to order the suspension of public servants who are facing probes. In the case of central and all-India services, the president is the appointing and the disciplinary authority.
Thanks to this Act now, the President of India shall ‘ordinarily’ be bound by the directions of the lokpal.
In sum, the lokpal will be an extra-constitutional authority. Francis Bacon said a bad law is the worst tyranny. This holds true for the lokpal Act.
Ashok Kapur is director general, Institute of Directors
The views expressed by the author are personal