Kapil Sibal*
The
provisions of the Jan Lokpal Bill, proposed by Shri Anna Hazare and his nominees
must be analyzed, keeping in mind the broad features of our constitutional
structure. 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 Government for policy
decisions, comment and analyze 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 which 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 thus far not worked very
well. We need to ensure greater accountability of the judiciary by framing a
law which on the one hand protects judicial autonomy and independence, and at
the same time ensures strict accountability. In other words, each limb of the
State, the pillars of our constitutional system, is accountable, one way or the
other. That is the essence of our Parliamentary Democracy.
It is
this essence which is in danger and is sought to be breached by the Jan Lokpal Bill proposed by Shri 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, since it will
have the sole power to investigate all public servants. It is not 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 cannot be
constitutionally justified.
One
argument opposing the above proposition is that the same logic applies to the
Judiciary because it too is not answerable to either the Executive or the
Legislature. This logic is erroneous 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 on the other hand is essentially an
investigating agency. (2) The
independence of the Judiciary cannot be equated to the independence of an
executive authority being 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 just like the Election Commission and the Comptroller
and Auditor General of India (CAG), also independent constitutional
authorities. Again the comparison is odious. The Election Commission’s
functions are regulatory and periodic and the CAG’s function is to analyze
expenditure of Government Departments and agencies funded by the Government to
ensure that moneys allocated are 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 institutionalized 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 them 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. I find this
premise inherently faulty.
Let us assume for a moment that we have put
in place a Lokpal which 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 corrupt acts of about
10-12 million people, what is required is a mammoth machinery both in terms of
manpower and otherwise to deal with individual acts of corruption by Government
employees. Where would that machinery
come from? Part of the human resource
that is 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 chaste
and 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 Monster
without accountability and act as an oppressive institution outside the
State. This consequence is far more
dangerous. The cure, in that case, would
be worse than the disease. You cannot have an Executive outside the
constitutional framework, answerable to nobody, because the chances of such an
organization corrupted by the sheer lust for power are much greater than the Executive
functioning within a constitutional framework, where checks and balances ensure
accountability. (PIB Features)
To be Continued…
*Union Cabinet Minister and a Member
of the Joint Drafting Committee
PRA/VN
SS-93/SF-93/28.06.2011