‘Constitutional Lokpal would have been difficult to repeal’


With the Lokpal Bill becoming the focus of attention within and outside Parliament, Justice V N Khare, former chief justice of India, spoke with Rudroneel Ghosh on the constitutional dimensions of the anti-corruption legislation:

How does the failure to confer constitutional status on the Lokpal affect the anti-corruption ombudsman?

Such an anti-corruption ombudsman was earlier established in Haryana and Punjab through a legislative instrument, that is through an ordinary statute. But there were some political bigwigs who were involved in corruption and the Lokayukta was on the verge of catching them. What the government did then was it repealed the (Lokayukta) Act itself through an ordinance. This happened both in Haryana and Punjab. My apprehension is that if a political heavyweight is under investigation, and the ombudsman has been established through an ordinary statute, then a simple ordinance can be passed to scrap the whole institution. But if the body has constitutional status, then it can’t be amended like this. It would have been difficult to repeal the Lokpal had it been given constitutional status.

Can the opposition argue that the minority quota in the Lokpal is unconstitutional?

No. Consider Articles 15 and 16 of the Constitution. Nowhere do they talk about a Hindu, Muslim or Christian quota. What they say is that nothing will prevent Parliament from enacting a law for advancement of educationally and socially backward class of citizens and members of the scheduled caste. There’s no mention of religion. When you identify certain Hindu castes such as Yadavs, Kurmis, etc you don’t say ‘Hindus’ are getting reservation; you say they are backward groups and on this basis you give them reservation. Similarly, among the Muslim community you can identify certain backward segments and have a quota for them. So it’s not a question of religion but educationally and socially backward communities.

Does the Lokpal Bill impinge on the country’s federal structure?

Article 252 of the Constitution provides that in case Parliament doesn’t have the power to enact a law, it can on the request of the states make law for those states as well as whosoever is concerned with the law. Article 253 says that Parliament is empowered to enact laws for the enforcement of international treaties and UN conventions. For example, there is no legislative subject called human rights. But because we were a signatory to the UN Human Rights Convention, we enacted laws to establish the National Human Rights Commission. Similarly, the 2003 UN convention on fighting corruption empowers Parliament to make laws to tackle graft. It is on this basis that the Lokpal Bill has been introduced under Article 253. If the UN convention did not exist, then you could say the Lokpal Bill impinges on federalism. But not in this case.

Is there any merit in the Team Anna argument that the CBI should be brought under the Lokpal?

I don’t think that the entire CBI can be brought under the Lokpal. The CBI is a huge organisation whose investigative capabilities are used for so many things other than fighting corruption. At best you can put 50 or 60 CBI officers on deputation with the Lokpal. However, if the CBI is under the government and the government is the prosecutor, there is a clear conflict of interest in prosecuting government corruption. I believe the CBI should be autonomous in any case.

Do you think the Lokpal can be a magic bullet against corruption?

Not at all. Just like water finds its own level, people will find other routes to corruption. But the Lokpal can be a deterrent and create some fear in the minds of potential offenders.


The Great Lokpal Conspiracy Theory


India is fast becoming like Pakistan — a society where bizarre conspiracy theories are plausible, credible, even highly probable. We no longer blame the CIA for floods or outbreaks of dengue. But there is reason to believe that the political process is being manipulated to ensure sinister outcomes that are not apparent. On the surface, the Lokpal bill is supposed to create an institution independent of the executive branch precisely in order to investigate and act against corruption, malfeasance and wrongdoing of members of the executive — be they elected politicians or unelected officials. But dear reader, do not get misled. The hidden purpose of the present Lokpal bill is to undermine the independence of the judiciary, which, in recent times, has been one of the few checks on the executive branch.

How does this conspiracy work? Here goes:

The 50 per cent quota requirement for the Lokpal virtually ensures that the Supreme Court will strike down the law as it has been enacted. The Supreme Court has no choice if it goes by the doctrine of judicial precedence given its own past judgments restricting quotas to less than 50 per cent.

The introduction of a “minority” quota makes the situation even more awkward for the Supreme Court and almost inexorably sets up a conflict between the judiciary and the legislature. Linguistic and religious minorities are referred to in the Constitution only with respect to rights in the cultural and educational sphere. For instance, they can run schools and colleges with taxpayer support but without government interference. Incidentally, many are not aware of the provision for linguistic minorities as the expression “minority” has now become one used only on a religious basis in common parlance. By this token a Gujarati is a member of a “minority” community in Maharashtra and a Marathi-speaker gets the same position in Gujarat. Linguistic minorities have the same “cultural” rights under our constitution that religious ones do. However, and this is significant — there is no mention of reservations or quotas for “minorities” in the Constitution apropos of government appointments. The non-majoritarian and secular nature of our Constitution was best described by Justice Santosh Hegde in his intervention from the bench during the Keshavananda Bharati hearings. He said that our Constitution is secular in spirit without ever mentioning the word “secular”. This was of course before the completely illegitimate amendment made to the Constitution’s preamble by Parliament. The preamble was a mere statement of historical fact — that “we gave ourselves” a Constitution that came into effect on January 26, 1950. How can amendments be made at a later date to a historical fact?

Once the Supreme Court strikes down the Lokpal bill as it undoubtedly will, the stage will be set for a “popular” movement against the judiciary. Political workers will be brought into Delhi from neighbouring states. There will be public “pressure” on the government to bring under its “control” the recalcitrant “anti-minority”, “anti-reservation” court.

Selected ministers of the government will start attacking the judiciary for being reactionary and for not understanding the wishes of the masses.

The government will then try to overturn the present collegium-based appointment of judges of the higher judiciary and re-establish cabinet control over these appointments. Given our penchant for political amnesia, no one will remember that the collegium-based approach was a desperate one forced on the judiciary because of the arbitrary process used earlier by the government of the day to pick and choose as judges and as the chief justice individuals who were “pliable” and “committed” (presumably to the executive, not necessarily the Constitution). Cabinet ministers can conveniently recycle the thoughts of an earlier law minister, the authoritarian H.R. Gokhale, who felt that judicial independence was an undemocratic, reactionary legacy.

Our collective amnesia will also ensure that we forget that most of the legislature versus judiciary conflicts in the past were due to badly drafted (need I say, probably deliberately badly drafted) laws and ordinances, precisely like the present Lokpal bill. The hastily introduced “Bank Nationalisation Ordinance” of 1969 was struck down not for the act of nationalisation but because of the inclusion of inconsequential clauses on shareholder compensation and on the rights of erstwhile shareholders to freely engage in any business which remained their right under the Constitution. The even more hastily drafted ordinance “derecognising” maharajas was the result of the government of the day failing to win the vote for the bill in the Rajya Sabha. This was also struck down. In neither case had the Supreme Court shown any pro-rich or pro-maharaja bias. The court had merely struck down absurd self-contradictory clauses in the enactments. But the publicists of the self-styled left-liberal government of the day went to town accusing the judges of being reactionary and anti-poor. This set the stage for wholesale arbitrariness and political chicanery in judicial appointments. The Supreme Court’s “collegium” solution was a belated response to the shabby prevarications of the executive.

We can predict, as night follows day, that once the Lokpal bill is struck down, as it probably will be, we will have an open season in terms of attacks on the judiciary and the beginning of the emasculation of this constitutionally independent institution. Dear reader: the purpose of the deliberately badly drafted Lokpal bill is now clear. The purpose is not to create an “independent” Lokpal. The sinister purpose is to undermine our “independent” judiciary.

Independent institutions like the Supreme Court, the Election Commission, the Comptroller and Auditor General, the non-political armed forces and the Reserve Bank of India have saved India from becoming the home of real or imagined “conspiracies”. But don’t be surprised if this situation is now primed for change. The historical precedents and our amnesia do not suggest an optimistic prognosis.

 The writer is chairman of the Nasscom Foundation


The bench in the Lokpal


The Lokpal bill has thrown up an important issue for the judiciary to ponder. Should the Chief Justice of India or a sitting judge of the Supreme Court be a member of the selection committee to appoint the Lokpal and, worse still, the director of prosecution? The committee is to be chaired by the prime minister, with the speaker of Lok Sabha, leader of the opposition in Lok Sabha and an eminent jurist nominated by the president as its other members. For appointing the director, it is a three-member committee, chaired by the prime minister, and with the leader of the opposition in Lok Sabha, apart from the CJI or the judge. Ostensibly, the provision looks benign, but in reality is fraught with serious issues of legality and, more importantly, propriety.

Not that judges never sit on committees. The collegium for appointment to the higher judiciary is, after all, a committee of judges; judges sit on the committee for appointment of members of judicial tribunals; they preside over advisory boards to opine on the continuity of preventive detention; it is a judges’ committee that inquires into charges of misconduct against their own brethren; and judges adorn the governing bodies of premier law colleges in the country.

None of the functions enumerated above is inconsistent with the role demarcated for the judiciary under the Constitution. They all pertain to matters concerning the judiciary or aspects integrally connected with it. Membership in a committee for the appointment of the Lokpal or the director of prosecution can never be bracketed with the above.

But what is so improper or illegal about their being members of the selection committee? The Lokpal is a glorified investigating agency. It inquires whether a case for prosecution for corruption is made out, and if so found, a case is filed in the special court against the individual concerned. The director of prosecution heads the prosecuting wing of the Lokpal. These functions are purely in the executive domain. No doubt, an incumbent or retired chief justice or an incumbent or retired judge can be considered for appointment as chairperson or judicial member of the Lokpal. A simple procedure for consultation with the judiciary, as it obtains in the Karnataka Lokayukta Act, would have more than fulfilled the requirement of fairness. The problem is in statutorily compelling the CJI or a nominated sitting judge to be a member of a selection committee, predominated by political personages.

Such a role will not only undermine the high office of a judge, it will also be a serious affront to the doctrine of separation of powers and an assault on the independence of the judiciary. This is quite apart from the fact that it ill behoves a sitting judge to engage in animated discussion with politicians on the merits and demerits of a likely appointee. It is not uncommon that similar appointments have been challenged before the higher judiciary and there have been cases where the selections have been found fault with and struck down. The Restatement of Values of Judicial Life states that a judge shall not express his or her views in public on matters likely to arise for judicial determination.

The Constitution favours an arm’s-length relationship with mutual respect between the organs of the state. It is not just friction, any kind of cosying-up would also cause unease in the citizenry.

There is another fundamental aspect of the matter. Before any duty, not directly connected with the discharge of judicial functions, is assigned, the government should take the judiciary into confidence. What if, after the bill is passed, the chief justice refuses to participate? Would that be an abdication of a statutory function? Judicial time is invaluable and any encumbrance on it should be constitutionally permissible and should always be with consent.

It is time the judiciary discussed in-house the issue as to when and in what circumstances can the government either statutorily or otherwise involve incumbents of the higher judiciary and allot them duties. If a sitting judge is to be spared even for a commission of inquiry, on a definite matter of public importance, the convention is to consult the judiciary, before making the announcement. It is a serious matter concerning the independence of the judiciary and neither the government nor the judiciary should be placed in a predicament, by resorting to hasty measures.

 The writer is a senior advocate at the Supreme Court, express@expressindia.com

SOURCE LINK: http://www.indianexpress.com/news/the-bench-in-the-lokpal/893631/0

Societal morality to constitutional morality



Equality and non-discrimination are the opposite sides of the same coin. Non-discrimination may also be regarded as the vehicle towards the achievement of equality.

Kalpana Kannabiran’s book, Tools of Justice: Non Discrimination and the Indian Constitution (Routledge, Taylor & Francis Group), a thesis of 500 pages, aims to make a contribution towards the achievement of a constitutionally acceptable order in India. It defines the change in the attitude and approach by all societal role players including, in particular, activists for social change, governmental organs as well as the judiciary. The approach it adopts includes the historical, sociological, social as well as juridical. I am not an expert on any of these disciplines nor do I know enough of the jurisprudence of India to comment on the correctness of specific facts or opinions set out in this monumental work. I have also not studied the numerous documents relied upon. My evaluation is therefore limited to examining some conceptual aspects from my perspective as a constitutional jurist in South Africa.

I must first touch upon approaches to constitutional interpretation. The writer advances an approach which may be said to be different from that adopted by the courts in India and emphasises the need to take into account the values and purpose of the Constitution. We would in South Africa too take into account the values and purpose of our Constitution. The debate about the correct interpretive approach has its basis on the distinction between arriving at the intention of the Constitution-makers, on the one hand, and the meaning of the document in its context, on the other. The latter pays little attention to the intention of Constitution-makers but, in conformity with the idea that a Constitution is a living, vibrant, flexible and dynamic instrument seeks to attain the meaning of the Constitution by extensive reference to context. I may say that I favour this approach without qualification.

It is in this sense that the methodology adopted by Ms Kannabiran is both useful and significantly powerful. She examines (in respect of disability rights; the rights of castes, tribes, religious minorities; and sex-based discrimination) the historical matrix, a conceptual delineation, the role of government, the role of activists as well as the position on the ground with ordinary people and thereafter makes proposals for change. It may well be that Ms Kannabiran has given expression to the breadth of the contextual circumstances that need to be taken into account by a court. It may not be possible for a court, in the light of the evidence available to it, to conduct as thorough an analysis as may be considered necessary. Time and resource constraints may also be a factor. But it cannot be doubted that the wider a court goes in taking into account contextual material to interpret a Constitution the greater the possibility that the final judgment of a court would reflect and represent a dynamic and living Constitution able to provide creative and transformative solutions to the problems that need to be addressed. And it must be emphasised that, unlike an ordinary commercial or delictual case, the court contest on constitutional rights often involves vulnerable communities and societies that comprise millions of people.

I did wonder whether Ms Kannabiran’s reference to Dr. Ambedkar was an attempt to go back to the approach of interpretation which relies on the intention of the lawmaker or whether the views of Dr. Ambedkar are referred to in the context of an expert.

The general approach in the thesis is to emphasise the distinction between constitutional morality and societal morality. That, as I understand it, is a distinction between the nature of society, its value system, morality, well-being, inclusiveness and peacefulness, contemplated by the Constitution, on the one hand, and societal morality, on the other. The latter is postulated as a society based on horrendous and systematic discrimination and violence against, and the exclusion of, vulnerable people and communities from the “dominant” mainstream. Ms Kannabiran’s work is concerned with the complex, difficult and obstacle ridden route from societal morality to the achievement of the constitutional morality.

We have the same problem in South Africa. Our Constitution proclaims a society that is equal and consonant with civil and political fundamental rights, environmental rights and socio-economic rights. We have a similar difficult route to follow. An evaluation which attempts to redesign the vehicle, build the road, chart the course and point to pitfalls is essential in a fundamental sense.

The building blocks employed in the determination and construction of the route are principally those of non-discrimination and liberty. If I understand the writer correctly, developing and putting into place a process that would systematically increase non-discrimination and liberty in a transformative sense would ultimately contribute best to the achievement of the constitutional order. There is no doubt that non-discrimination and liberty are important components of the process. But whether they are the most important or the only components is a different question. I would suggest, and the writer might agree, that all the values of the Constitution and all the rights contained in it are of fundamental and equal significance. A hierarchy of rights cannot be countenanced because rights are indivisible and inter-related. It must be said in all fairness, that Ms Kannabiran does indeed make extensive reference to many of the other rights of vulnerable people and communities. I get the sense that perhaps the concepts of non-discrimination and liberty are used to connote the circumstance that these concepts are applicable to all the rights in the Constitution and therefore all embracing.

The work postulates a distinction between non-discrimination and equality and a kind of synthesis between non-discrimination and liberty. There may be a different approach. Provided that we are speaking about substantive equality and not formal equality (I have no doubt that Ms Kannabiran is), equality and non-discrimination are, in my view, the opposite sides of the same coin. Non-discrimination may also be regarded as the vehicle towards the achievement of equality. An over-emphasis of the importance of freedom could, on the other hand, be counter-productive to the cause. This is because almost all dominant sectors rely on their right of freedom to continue with their oppressive, non-transformative, objectionable conduct. Yet, if freedom is qualified by equality in the sense of everyone being entitled to an equal freedom, the achievement of an equal society would then be modulated by appropriate management of the tension between freedom and equality.

I can only comment on one more issue. And that is Ms Kannabiran’s plea, support and argument for intersecting grounds of discrimination as well as analogous grounds. Our Constitution provides for both and it is an important reason why I swear allegiance to it. It goes without saying that a poor Dalit deaf lesbian woman on a wheelchair is far more vulnerable and in greater need of constitutional protection than a female university teacher who has all her faculties and who is part of the “dominant” classes. If this is not recognised, constitutional jurisprudence could suffer. And there is no need to limit protection to the grounds expressly mentioned in the Constitution.

I would have hoped that the book would have been shorter to be more accessible so that role players who are important in the various sectors would have been able to benefit from it completely even if they were not academically inclined. Nevertheless, a careful study of this fascinating work would enhance an understanding of the position on the ground, the dire need for change and the way in which this is to be done.

(Z.M. Yacoob is Justice of the Constitutional Court of South Africa.)

Source:   http://www.thehindu.com/opinion/lead/article2758601.ece