Minimal changes to existing laws adequate to fight corruption

The controversy over the Lok Pal refuses to die down. Coupled with the Baba Ramdev’s aborted fast over unearthing black money, particularly that which is stashed away in overseas tax havens, Anna Hazare’s continuing call on a ‘Jan Lok Pal bill’ has received immense media attention in the country and inspired the middle class, which is wedded to the cause of quick but clean governance. The Government is seen as having scuttled the early flurry of Ramdev, and has contested the suggestions made by Team Anna on the proposed Lok Pal bill, saying that not all provisions in their draft Bill is amenable to the existing constitutional scheme. Independent of what the Government of the day, and even other sections of the polity may have to say over issues of corruption and black money, where they are often seen only as offering lip-service, there seems to be a lot of sense in the recent utterances of the four-member ministerial team on what is described as the ‘Jan Lok Pal bill’.

Post-negotiations, the Government seems to be dragging its feet even more by declaring that whatever was agreed upon was by the ministerial team, not the Government per se. This is in contrast to the haste with which the Government began working with Team Anna on the one hand and Baba Ramdev on the other, without considering the constitutional consequences. It seemed wanting to minimise, if not avoid the political/public embarrassment, and nothing more. For their part, neither Team Anna, nor Baba Ramdev for that matter, seemed to know where to draw the line that they should not cross, or have a strategy to produce results, not just news clips and sound-bites for the day. In the coming weeks, it is not impossible that the focus is lost on the very cause, and the diatribes and discourses centring on details could render the entire proceedings tiresome for the people.

The basic reservations of the Government team to the bill drafted by Team Anna relates to the latter’s insistence on the inclusion of the Prime Minister, the parliamentary conduct of members and also the higher judiciary under the proposed law. The Government, or the four-member ministerial team that negotiated with Team Anna, has pointed to the impossibility of including the three sections to schemes such as the Lok Pal. By including the Prime Minister under such a scheme, particularly without having to go through prior clearance for prosecution of any kind from the President, has the potential to hit at the very basis of our constitutional scheme. The very idea of introducing prior clearance for prosecution of ‘public servants’ was to avoid frivolous and motivated complaints and petitions being conferred the honour of a serious charge.

Yet, the Supreme Court’s judgment in the ‘Antulay case’ clearly expanded the scope of the term ‘public servant’ under the Prevention of Corruption Act (PCA) to include the political class in power. Subsequent amendments to the PCA brought in benamis and operational frontmen of such ‘public servants’ under the scheme. This would show that the existing scheme has been applying correctives and expanding the scope of the existing law without external pressures. At the same time, memories from the damage caused to the institution of the Prime Minister by the media hype and the political war on corruption launched on the basis of the ‘Lakhubhai Pathak case’ is still fresh. Years after the late P V Narasimha Rao had stepped down as Prime Minister, the court acquitted him of the charges made by a pickle-trader, but the damage had been done. No questions were then asked, or since, as to why Lakhubhai Pathak then said what he had said. He was dead by then.

Under the Constitution, and through various court rulings, the parliamentary conduct of individual members have been kept out of judicial scrutiny though the pieces of legislation that they pass in the process could still be challenged for their legality and constitutional validity. This is aimed at ensuring that members of Parliament, and also the State legislatures are guaranteed the freedom to engage in debates without any reservations or apprehensions. It may be another matter that not every one of them has utilised the right with prudence but that cannot be cited as a reason to vitiate the basis of our democracy. The less said about the need for inclusion of members of the higher judiciary under the Lok Pal the better. Even while considering the need for introducing a law to hold members of the higher judiciary accountable, successive Governments at the Centre have been circumspect about the methodology, as it should not be seen either as Executive vindictiveness, or as excessive interference by the Executive and the Legislature in the independence and ordinary functioning of the higher judiciary. Under the constitutional scheme, the judiciary is the watch-dog, and it has acted when other pillars of democracy had weakened or wilted. The Supreme Court’s handling of the 2-G scam and the CWG scandal are a case in point.

Travesty of law and practices

The role assigned to the higher judiciary in choosing the Lok Pal(s) is a travesty of existing laws and established practices. The proposed bill has included the Chief Justice of India and also other Judges for participation in the choice of the Lok Pal. Independent of the choice of the Lok Pal, both the proceedings in the choice and the subsequent proceedings before the Lok Pal could be contested before the courts of law. Where the choice itself is under question, the Supreme Court would be called upon to sit in judgment over the choice made on its behalf. Similar is the case with the proposed inclusion of other constitutional authorities like the Chief Vigilance Commissioner (CVC) and the Comptroller and Auditor-General in the selection panel. It is another matter to include their offices as the investigative arms of the Lok Pal, considering their existing, defined roles. These are basic tenets of the law, which the learned members of Team Anna seem to have overlooked.

The ‘Jan Lok Pal bill’, or the bill drafted by the civil society representatives under social activist Anna Hazare, has likewise used undefined and unquantifiable terms such as ‘impeccable integrity’ and a ‘record of public service, particularly in the field of fighting corruption’ as eligibility for members and chairperson of a Lok Pal. In recent weeks, we have seen as to what use, misuse or abuse the phraseology, ‘impeccable integrity’, as defined by the Supreme Court in the ‘VineetNarain case’ was put to, in the choice of the Chief Vigilance Commissioner (CVC). By confining the choice to civil society members fighting corruption, a new class of persons is being created under the law in its aftermath. It will be seen as the civil society organisations in the field, now and later, sub-serving their institutional interests in the matter.

N. Sathiyamoorthy
(Observer Research

Foundation)

To be continued…

 

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