Under our Constitution, the executive is answerable to Parliament as well as to the judiciary. To Parliament: when members from the Opposition seek explanations from the government for policy decisions, comment and analyse proposed government legislation and seek information from government.
Through robust parliamentary procedures including debates, the people of India are informed of the manner in which the executive functions. The legislature, namely the two Houses of Parliament, is answerable to the court that has the power, through judicial review, to strike down legislation on the touchstone of our Constitution. Our legislators are also responsible and accountable to their constituents when they seek re-election after the dissolution of the House.
The judiciary, independent of both the executive and the legislature is accountable through an open and public judicial process. The hierarchy of courts helps correct judicial errors. Individual judges are also accountable through the process of impeachment by the legislature. That has so far not worked very well.
We need to ensure greater accountability of the judiciary by framing a law that protects judicial autonomy and independence and at the same time ensures strict accountability. In other words, each limb of the State is accountable, one way or the other. That is the essence of parliamentary democracy.
It is this essence that is in danger of being breached by the Jan Lokpal Bill proposed by Anna Hazare and his nominees. The lokpal, according to the proposed Bill, is an unelected executive body with independent investigation and prosecution agencies, answerable to none.
It is not answerable to the government, being outside it, as it will have the sole power to investigate all public servants. It isn't answerable to the legislature. Outside government, we will have no access to its functioning, a prerequisite in informing Parliament.
Besides, it will have the power to investigate all members of Parliament. It is not answerable to the judiciary except when it initiates the judicial process by taking recourse to the provisions of the Code of Criminal Procedure. Besides, it will have the unique power to investigate members of the judiciary. Such an entity not accountable to any constitutional authority can't be constitutionally justified.
One argument opposing the above proposition is that the same logic applies to the judiciary as it, too, isn't answerable to either the executive or the legislature.
This logic is wrong for two reasons:
1) All judicial proceedings are open to the public and judicial decisions are subject to revision, appeal and review. Judicial errors are liable to be corrected by superior courts. The lokpal, however, is essentially an investigating agency.
2) The independence of the judiciary can't be equated with the independence of an executive authority like the lokpal, the prime function of which is to investigate and prosecute. The judiciary seeks to protect citizens. The lokpal seeks to prosecute them. Autonomy of the judiciary must be protected since the judiciary resolves disputes. It is not mandated to prosecute people.
The second argument is that the lokpal is like the Election Commission (EC) and the Comptroller and Auditor General of India (CAG), also independent constitutional authorities. Again, the comparison is odious. The EC's functions are regulatory and periodic and the CAG's function is to analyse expenditure of government departments and agencies funded by the government to ensure that money allocated is not wastefully employed.
It is, therefore, clear that in the scheme of things, an unelected lokpal who is not accountable is anathema to our concept of parliamentary democracy.
Another broad feature which is worrisome is the general premise underlying the Jan Lokpal Bill. It proceeds on the assumption that corruption has been institutionalised and is all-pervasive; that there is confluence of interests in government departments when a subordinate public servant charged with corruption is protected by his superior since the fruits of corruption are shared by all.
Consequently, corrupt acts are not dealt with and if dealt with, are delayed. The same applies to the political process since the political class is corrupt and seeks to protect itself by not enacting laws which make it accountable. These assumptions are not entirely accurate. The premise is that if a lokpal is set up outside the government, there would be no confluence of interests and the lokpal will be able to cleanse the system. This premise is inherently faulty.
Let us assume for a moment that we have put in place a lokpal that has within its ambit, all central government employees (about 4 million) and a lokayukta in every state, which has in its ambit all state government employees (about 7-8 million).
If the lokpal or lokayuktas are to deal with the corrupt acts of about 10-12 million people, what is required is a mammoth machinery to deal with individual acts of corruption by government employees.
Where would that machinery come from? Part of the human resource required will have to be transferred to the lokpal from existing investigating agencies. The human resource in the CBI that deals with corruption under the Prevention of Corruption Act, 1988, will have to be, to some extent, transferred along with personnel from other investigating agencies of government.
Besides, over the years, the lokpal will have to separately recruit investigating and prosecuting officers for disparate needs. It is not understood as to how the existing officers transferred to the lokpal and the new recruits of the lokpal will suddenly become incorruptible merely because they happen to function under the lokpal.
The danger of setting up such a structure is that it may end up as a Frankenstein's monster without accountability and act as an oppressive institution outside the State.
The cure would then be worse than the disease.
Kapil Sibal is a Union cabinet minister and a member of the joint drafting committee of the lokpal bill. The concluding part of the article will appear on June 30. The views expressed by the author are personal