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Up the garden path

Anna Hazare’s proposed lokpal, with its powers of prosecuting the PM, higher judiciary and MPs, will weaken the republic, writes Kapil Sibal.

india Updated: Jun 30, 2011 02:28 IST

The jurisdiction of the Jan Lokpal Bill is all-pervasive. It covers all public servants including members of the higher judiciary. This has far-reaching consequences. Some eminent jurists believe it might fall foul of the basic structure of the Constitution. The autonomy and independence of the judiciary is protected under the Constitution, which allows a member of the higher judiciary to be removed only through a cumbersome impeachment process. The intent was to ensure that justice is administered without fear or favour. What we need is a robust Judicial Accountability Bill.

The Jan Lokpal Bill provides an alternative wherein 11 unelected wise men will have the sole authority to prosecute a member of the higher judiciary. The consequences are worse when you consider that the Jan Lokpal Bill will have independent investigating and prosecuting agencies. No judge will ever dare to differ with the views of a prosecutor of the lokpal since he might face prosecution himself if his orders are misunderstood.

One of the litigants to a dispute is always unhappy with the outcome of a court proceeding. Presently, unhappy litigants are willing to face the wrath of the court by hurling unsubstantiated allegations against judges. With the jan lokpal in place, these allegations will be made daily, threatening the autonomy of the judicial process and vitiating the course of justice.

The second concern is that the jan lokpal seeks to arrogate to itself the power to discipline government servants. This would require a constitutional amendment. At present, the tenure of a government servant is protected by the procedural requirements embedded in Article 311 of the Constitution. Besides, the quantum of punishment is required to be determined by the Union Public Service Commission on a reference made to it under Article 320 (3)(c) of the Constitution. In the event of such an amendment, the jan lokpal will have the authority to discipline all employees of the central government. This is a directional shift from the existing constitutional structure and interferes directly in matters of maladministration.

Such a step will paralyse government functioning. Government servants will be fearful of possible disciplinary proceedings, loath to obey the officers and lodge complaints against each other to settle personal grievances. Decision-making will become a casualty. Those far removed from administration are providing solutions, which are both utopian and impractical. The jan lokpal also wishes to bring the office of the PM under its jurisdiction. In a democracy, all public servants are accountable. No one can object in principle to such a proposition. The issue is whether the jan lokpal should be given that authority? One jurist (Rajinder Sachar, Scared of the spark, June 24) has pointed out that experience does not show that all our PMs have been angels. That holds true of our judges as well. The future is likely to prove that members of the jan lokpal are not angels either. Independence does not make functionaries angelic.

None of us is being more loyal than the king when we seek to protect, not the individual, but the office of the PM. Given the nature of our polity, quick-fire unsubstantiated allegations made for political mileage are likely to paralyse institutions. The office of the PM is the lynchpin of our parliamentary democracy. An independent, non-angelic jan lokpal could well destabilise the entire system and investigate a PM only to find out that the allegations were not true. Under the present system, the PM is not immune from prosecution. In a given case, when facts are in the public domain, the system will not allow a corrupt PM to continue in office. The reference to Jacques Chirac by an eminent jurist is inapt because his prosecution started several years after demitting office, since the French president is immune from prosecution while in office. Besides, the prosecution relates to a time when he was the mayor of Paris (1977-1995). The reference to Italian prime minister Silvio Berlusconi is equally inappropriate. Given an unstable neighbourhood and the threat of terrorism, weakening the institution of the PM would be a monumental folly.

Yet another concern is the attempt by the jan lokpal to prosecute members of Parliament, who are protected under Article 105(2) of the Constitution only for speeches made, and the right to vote exercised, in the House. These are two precious rights. To allow them to be the subject of investigation would encourage members of an intensely polarised polity to question every speech made and every vote cast. Such a power vested in the lokpal would again require an amendment to the Constitution. The remedy lies with the ethics committees of Parliament to be far more vigilant and unrelenting in dealing with members against whom there is prima facie proof of corrupt practices and for the Speaker to sanction persecution. Other controversial provisions of the Jan Lokpal Bill include transferring the chief vigilance commissioner and the anti-corruption wing of the Central Bureau of Investigation to the jan lokpal; the lokpal under Section 5 of the Indian Telegraph Act becoming an authority, authorised to interfere and monitor messages, voice and data transmitted through telephone, internet or any other media without reference to existing legal procedures; having the authority to bind the finance minister to its budgetary demands; issuing directions in public interest during the course of an investigation for taking action as recommended by the jan lokpal; impose fine up to five times the loss caused to the public on business entities who may be beneficiaries of corrupt acts, and having it recovered from the assets of the business entity as well as personal assets of its managing director and others.

Anna Hazare, the Pied Piper, has enchanted people with his melody. But neither he nor those who follow him are aware that the journey ahead might threaten the republic.

Kapil Sibal is a union cabinet minister and a member of the joint drafting committee of the lokpal bill The views expressed by the author are personal.