LAW RESOURCE INDIA

For a reasoned debate

Posted in ACCOUNTABILITY, CONSTITUTION, CORRUPTION, GOVERNANCE, JAN LOKPAL by NNLRJ INDIA on December 28, 2011

RAJINDER SACHAR IN THE TIMES OF INDIA

The debate in Parliament on the Lokpal Bill has unfortunately touched a nadir. Instead of discussing the proposed legislation in a sober atmosphere and with conscious effort to arrive at as much consensus as possible, political parties have instead indulged in mutual attacks. The government’s furtive slipping in of various quotas, including for the minorities, was a deliberate ploy with an eye on the UP elections. This, despite the doubts on the move’s legality expressed by former Supreme Court judges and jurists. Could anyone imagine that the selection committee composed of the prime minister and leader of the opposition, irrespective of their party affiliation, and a non-political chief justice of India, would not include members from among Muslims or women based on their own merit? Why was this non-issue raised unless it is a device to stall the legislation? Let us not forget that the Mulayam Singh-Lalu Yadav groups sabotaged the women’s reservation Bill by insisting on quotas.

Further, the suggestion that any allegations against the prime minister would have to be decoratively pigeonholed and brought out only after he remitted office (which may be five years later) does not make sense. Are we living in a democracy or under the kingship of a representative of the divine?

Also, the most contentious matter relating to the CBI remains unresolved. Its director’s appointment should be by a joint committee consisting of members of the Lokpal and the standing committee of Parliament. Give him a fixed tenure of, say, five to 10 years. He should have full administrative control over CBI staff and earmarked funds from the Consolidated Fund. There should be no interference in his day-to-day functioning from the government or the Lokpal. However, the Lokpal would be entitled to ask for and receive reports from him at regular intervals, and also authorised to convey its decisions on such matters. He should not be removed from service except in the manner and on like grounds as a Supreme Court judge – the same applies to the chief election commissioner.

I for one would not limit the choice necessarily to a police official; he could even be from outside the service. If it’s decided to have a chief vigilance commissioner, the same conditions and procedure could apply to the CBI director.

Surprisingly, notwithstanding bitter wrangling on other aspects, all members of Parliament agree to keep themselves immune from the ambit of the Lokpal and even the CBI for corrupt actions and bribery if committed inside Parliament. To me, this is scandalous and unacceptable. In their defence, MPs invoke Article 105 of the Constitution, and the widely criticised majority judgment of three against two in the Narasimha Rao case, 1999 (I believe the matter is referred to a larger bench).

The minority judgment, however, warned that this interpretation could lead to a charter for corruption so as to elevate MPs as “super-citizens, immune from criminal responsibility”. It would indeed be ironic if a claim for immunity from prosecution – founded on the need to ensure the ‘independence’ of MPs in exercising their right to speak or cast their vote in Parliament – could be put forward by a member who has bartered away his independence by agreeing to speak or vote in a particular manner in lieu of illegal gratification that has been paid or promised. By claiming the immunity, he would only be seeking a licence to indulge in corrupt conduct. In many other countries, such conduct of MPs is treated as criminal.

To invoke Article 253 of the Constitution for enactments concerning Lok Ayuktas is of doubtful legality and imperishable in our federal set-up. Surely no state can resist the public sentiment built in favour of Lok Ayuktas.

The matter of the Lokpal is too important and needs to be discussed more seriously, and not under pressure related to the forthcoming elections in Punjab and especially UP. Also, the panicky reaction of the government to Anna Hazare’s fast is compounded by the opposition wanting to cash on it, as when they went to his recent sit-in to cosy up to him. Their puerile excuse that they wanted to explain their point of view is unacceptable. Political parties hold their own meetings to explain their position to the public. We go to Jantar Mantar to show our solidarity with the victims of forced displacement or against the government’s illegal actions against the deprived poor. Parties do not go to the sit-in of a person they now want to deride and ridicule.

Of course, I agree Anna Hazare has full right to muster support from the masses and exercise his democratic rights, as well as put pressure on the government and even Parliament to pass a particular law. For, the ultimate sovereign is the people. But the caveat is that the discussion on the Lokpal requires a calmer atmosphere. Therefore, political parties should unanimously agree to adjourn the discussions till after the pressure of the UP elections is over, with a pledge to pass the legislation as the first item when Parliament begins the next session.

As a measure of his genuine concern for a strong Lokpal, Anna ought to reciprocate by not going on fasts. He can rest assured that the people’s determination to have a strong Lokpal is not so weak as to let the government avoid its solemn pledge to pass the Bill in the next session of Parliament. If the government further prevaricates, most know that the consequences could be monumental. No government can remain in permanent confrontation with its real masters, the people of India.

(The writer is a former chief justice of the Delhi high court)

http://timesofindia.indiatimes.com/home/opinion/edit-page/For-a-reasoned-debate/articleshow/11267895.cms

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