JAITIRTH RAO IN THE INDIAN EXPRESS
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