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 LokpalBill 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 orLokayuktas 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, theLokpal 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.

The jurisdiction of the Jan Lokpal Bill is all pervasive. It covers all public servants including members of the higher Judiciary. This Legislation seeks to break new ground. It is an attempt to reign in and discipline members of the higher Judiciary. This has far reaching consequences. First, some eminent Jurists believe it might fall foul of the basic structure of the Constitution. The autonomy and independence of the Judiciary is protected under the Constitution, which allows a member of the higher Judiciary to be removed only through the cumbersome impeachment process. The intent was to ensure that justice is administered without fear or favour. Instead, we need a robust Judicial Accountability Bill.

The Jan Lokpal Bill provides an alternative machinery wherein 11 unelected wise men will have the sole authority to prosecute a member of the higher Judiciary. The consequences are even worse, when you consider that under it the Jan Lokpal Bill will have independent investigating and prosecuting agencies. No judge will ever dare differ with the views of a prosecutor of the Jan Lokpal since he might face prosecution himself if his orders are misunderstood.

One of the litigants to a dispute is always unhappy with the outcome of a Court proceeding. Presently, unhappy litigants are willing to face the wrath of the Court by hurling unsubstantiated scandalous allegations against Judges. With the Jan Lokpal in place, these allegations will be made on a daily basis, threatening the autonomy of the judicial process, vitiating the course of justice. We cannot allow this to happen.

The second matter of concern is that the Jan Lokpal seeks to arrogate to itself the power to discipline Government servants. This would require a Constitutional amendment. At present, the tenure of a Government servant is protected by the procedural requirements embedded in Article 311 of the Constitution. Besides, the quantum of punishment is required to be determined by the Union Public Service Commission on a reference made to it under Article 320 (3)(c) of the Constitution. In the event of such an amendment, the Jan Lokpal will have the authority to discipline all employees of the Central Government. This is a directional shift from the existing Constitutional structure and interferes directly in matters of mal-administration.

This will paralyze Government functioning. Government servants will be fearful of possible disciplinary proceedings and loath to obey the hierarchy of officers above them. No Government can and should allow this to happen. Everyday complaints will be lodged by Government servants against each other to settle personal grievances. Decision-making will be a casualty for fear of a complaint by a colleague. Those far removed from administration are providing solutions, which are both utopian and impractical.

The Jan Lokpal also wishes to bring the office of the Prime Minister under its jurisdiction. In a democracy, all public servants are accountable. None can object in principle to such a proposition. The issue is whether the Jan Lokpal consisting of 11 wise-men should be given that authority? One Jurist has recently opined that past experience does not show that all our Prime Ministers have been angels. I humbly submit that this also holds true of our judges. That all are not angels. Our future experience is also likely to prove that members of the Jan Lokpal are also not angels. Independence does not make functionaries angelic.

None of us is being more loyal than the King when we seek to protect, not the individual, but the office of the Prime Minister. Given the nature of our polity, quick-fire unsubstantiated allegations made for political mileage are likely to paralyze Institutions. The office of the Prime Minister is the lynchpin of our Parliamentary democracy. An independent non-angelic Jan Lokpal could well destabilize the entire system and investigate a Prime Minister only to find out that the allegations were not true. That is a distinct possibility. Such an eventuality will diminish Parliamentary democracy.

Under the present system, the Prime Minister is not immune from prosecution. In a given case, when facts are in the public domain, the system will not allow a corrupt Prime Minister continue in office. The reference to Jacques Chirac by an eminent jurist is inapt because his prosecution started several years after demitting office, since the French President has immunity from prosecution while in office. Besides, the prosecution relates to a time when he was the Mayor of Paris (1977 – 1995). Reference to Silvio Berlusconi is equally inappropriate.

Given an unstable neighbourhood and terrorism being a real threat, weakening the Institution of the Prime Minister would be a monumental folly.

Yet another concern is the attempt by the Jan Lokpal to prosecute Members of Parliament, who are protected under Article 105(2) of the Constitution only for speeches made, and the right to vote exercised, in the House. These are two precious rights. To allow them to be the subject of investigation would encourage members of an intensely polarized polity to question every speech made and every vote cast. This is hardly a recipe for a mature solution. Such a power vested in the Lokpal would again require an amendment to the Constitution. The remedy lies with the Ethics Committees of Parliament to be far more vigilant and unrelenting in dealing with Members against whom there is prima facie proof of corrupt practices and for the Speaker to sanction persecution.

Other controversial provisions of the Jan Lokpal Bill include transferring the CVC and the anti-corruption wing of the CBI to the Jan Lokpal; the Lokpal under Section 5 of the Indian Telegraph Act becoming an authority, authorized to interfere and monitor messages, voice and data transmitted through telephone, internet or any other media without reference to existing legal procedures; having the authority to bind the Finance Minister to its budgetary demands; issuing directions in public interest during the course of an investigation for taking action as recommended by the Jan Lokpal; impose on business entities who may be beneficiaries of corrupt acts, fine up to 5 times the loss caused to the public and having it recovered from the assets of the business entity as well as personal assets of its Managing Director and others.