Author:
Publication: Bjp.org
Date: July 4, 2011
URL: http://www.bjp.org/index.php?option=com_content&view=article&id=6949:shri-arun-jaitley-leader-of-opposition-rajya-sabha-regarding-lokpal-bill&catid=68:press-releases&Itemid=494
A national upsurge against corruption is both
legitimate and understandable. Recent instances of corruption have shaken
the faith of people in the existing anti-corruption mechanism.
The cancer of corruption has impacted various
institutions. The 2008 Vote of Confidence obtained by the UPA Government in
the Lok Sabha was vitiated by political defections wherein bribery and corruption
played a significant role. The Parliamentary Committee disregarded the overwhelming
evidence of bribery and divided itself on political lines. There is no greater
crime in a democracy than vitiating a parliamentary mandate through bribery.
An act of bribery was covered up by parliamentary subversion. Despite three
years of protests the 2-G scam went unaccountable. It took a great deal of
parliamentary pressures, media debates and judicial activism to bring some
people to book. An international event like the Commonwealth Games was subverted
due to allegations of corruption in the organization of the games. The credibility
of Indian media is adversely hit by allegations of 'paid news'. Judiciary
must comprise of men of absolute integrity. Those who man judicial system
adjudicate disputes between ordinary human beings. The premise on which the
judicial institution functions is that it would be free from any collateral
considerations. Regrettably, with many aberrations, this presumption does
not exist today. The presumption of absolute impartiality has ceases to exist.
It is therefore important that accountability
mechanisms within the society are strengthened and improved. The Lokpal is
one such 'integrity institution' whose creation has been long debated. It
provides a hope to many that accountability mechanisms will improve and a
punishment to wrong doers will demonstrate a deterrent effect for others.
The Ministers' draft of the Lokpal Bill has
to be judged on the criteria whether it can sub-serve the object sought to
be achieved.
The appointment and Removal mechanism
This draft provides for a Chairman and ten
members who constitute the Lokpal. Four out of these ten members are judicial
members. The Selection Committee to appoint the Lokpal is provided for in
the draft bill. Besides two Leaders of Opposition and two representatives
of the judicial institution the Ministers' proposal provides for the prime
Minister, the Speaker of the Lok Sabha, a leader of the house in which the
Prime Minister is not a member, the Home Minister as members. The Cabinet
Secretary is the member-Secretary of the Committee and the President of the
National Academy of Sciences is added as a member. There is an excessive domination
in the Selection Committee of those who support the government in power. To
give a numerical edge to the Government, the Cabinet Secretary and the President
of the National Academy of Sciences have been added as members. The latter
has no expertise in the matter of appointment of a Lokpal.
The ministers' draft provides that once it
is armed with the Government majority the selection panel will select a Chairman
and ten members of the Lokpal. The Non-Judicial members must be those with
special knowledge of public affairs, administrative law,policy, academic,
commerce, industry, law, finance or management. If the appointee is a member
of parliament or legislature of a State, he is expected to resign before becoming
a member of the Lokpal. Similarly, if he is connected with a political party
he must severe his relationship with that party. This bill if enacted is expected
to be replicated at the level of the State. Enough play of joints is given
to the Selection Committee with Government domination to appoint various categories
of persons including political workers provided they severe their connections
with the party or resign from the public office they are holding. Adjudication
of culpability or innocence is an investigative or judicial function. One
has to sift through voluminous evidence in order to form an opinion whether
an offence has been committed or not. It is either judges or police investigators
who have experience or training to form a view. The very idea of placing politically
connected persons or ideological campaigners which may include civil society
members may render this adjudication a suspect. The ministerial draft enables
the appointment of persons unequal to the task of being independent, fair
and effective. The appointments can be loaded in favour of the Government.
If a person is aggrieved with bias or misconduct
of a Lokpal, the Ministerial draft provides for no remedy to him. His removal
can be made only by the Supreme Court only on a reference made by the President
i.e. on the aid and advice of the Government. Thus, a Government can initiate
the removal of a Lokpal. An aggrieved citizen cannot. Worse still, the power
of suspending a Lokpal who at times may prove inconvenient for the Government
is surprisingly vested in the Government and not in the Supreme Court.
Thus, a preliminary analysis of the ministerial
draft reveals that the Selection Committee is Government dominated. The appointing
criteria is vague and not necessarily confined to those capable of adjudicating
on the basis of legal evidence. Former politicians can also be appointed.
The power of initiating removal is with the government and the power of suspending
an inconvenient Lokpal is also with the Government.
On the inclusion of Prime Minister
The ministerial draft clearly provides an
immunity to the Prime Minister from the jurisdiction of the Lokpal. The Lokpal
Bill lays down the procedure for investigation and creates the agency which
has the power to investigate. The substantive law of corruption under which
the crime is committed is the Prevention of Corruption Act. The substantive
law i.e. Prevention of Corruption Act does not grant any immunity to the Prime
Minister. If he is investigated by agencies such as the CBI or a State Police,
no such immunity is available to the Prime minister. Laws granting Prime Minister's
immunity from legal provisions have been frowned upon. Constitutional amemdment
which made prime Minister's election non-challengeable was introduced in the
Emergency. It was struck down by the Supreme Court. Ordinarily if the prime
minister commits an offence the accountability standards for them must be
higher than ordinary humans. The principle of Ceaser's wife being beyond suspicion
requires a more stringent standard for a Prime Minister. A prime Minister
in larger public interest may need protection only in relation to National
Security or Public order issues. These areas affect India's sovereignty and
security. Decisions taken by the Prime Minister and expenditure incurred on
these subjects cannot be accounted for either before the Lokpal or any other
investigative agency. There may be a rationale for treating these areas as
special and distinct but if a Prime Minister were to receive kick-backs on
commercial transactions or subvert a vote of confidence through bribery, why
should he be immune from the penal law? It is for this reason that both Shri
Atal Bihari Vajpayee and Dr. Manmohan singh have repeatedly said that they
have no objection on being covered by the Lokpal. Clause 10 of the Lokpal
Bill of 2001 thus granted only a limited immunity to the Prime Minister wherein
it was stated -
"Provided that Lokpal shall not enquire
into any matter involving, or arising from, or connected with, any such allegation
against the Prime Minister inso far as it relates to national security or
maintenance of public order".
This formulation in the NDA Bill seems to
be more appropriate than a complete immunity.
Judicial Accountability
Currently the system of judicial accountability
is dealt with either as the in-house mechanism in the judicial system or by
the impeachment process. The impeachment process is cumbersome, extraordinarily
prolonged and ineffective in most cases. It is a process which is resorted
to in the rarest of rare cases. The in- house mechanism has demonstrated its
inherent limitation. India has moved to an era where judges appoint judges
and other than in impeachment cases judges alone decide upon the misdemeanor
of a delinquent judge. We have tried this system and regrettably failed. We
have thus to explore a new system. There must be no knee-jerk reactions. We
still need a responsible debate on the alternative mechanism. Some civil society
activists have suggested that the Lokpal mechanism to cover the judicial institution
also. An alternative suggestion has been that appointments and disciplinary
matters relating to the judiciary should now go to a National Judicial Commission.
The law Minister, Shri Veerappa Moily has been suggesting that the law relating
to judicial standards and accountability be strengthened to include some of
these concerns. The NDA Government had introduced the 98th Constitution Amendment
in 2003 which provided for a National Judicial Commission in order o make
judicial appointments. Its membership provided for judicial primacy but included
the Law Minister as a representative of the Government and an eminent citizen
who would be a public watch dog. The composition of the National Judicial
Commision can be a matter of debate and larger consultation. Time has now
come to create such a Commission and consider converting it into both an appointment
and integrity institution in relation to the judges. This could be the Judicial
Lokpal.