Travesty of the Law~I

Source: By Ashok Kapur: The Statesman

It is a quirk of public life in India that the improbable always happens. The Lokpal Act, 2013 has been ‘activated’ after all these years, though one was confident that the Act would be aborted. The talk of Lokpal had been going on for long, but it was hoped that the periodic mention in the media was no more than a vacuous ritual indulged in by political parties to mollify a handful of loudmouths masquerading as social activists if not learned jurists.

It reminds one of the proverb that the ‘Way to hell is paved with good intentions’. In this case, it can even be said that it is paved with the best of intentions. Undeniably, the intentions of these activists cannot be faulted; they are concerned with widespread corruption and abuse of authority by the elected representatives, without any check.

Besides, it is the day-today venality of the petty official that plagues the common man no end. Had some of these activists read the Act, they would have been aghast. The hope that the Lokpal will be a panacea for all such ills is entirely misplaced. He can do no such thing. The entire concept is not only flawed but is highly unconstitutional.

The Act is a travesty of the law which will result in a host of endless problems for the elected government of the day. It is a poorly conceived piece of legislation; even the concept of Lokpal has not been defined. It is a catchy slogan, outlining a structure that will smoothly facilitate the virtual takeover of an elected government by an unelected judiciary not accountable to anyone. India, like any modern democratic state has three coequal organs ~ the legislature, the executive and the judiciary.

Each has a defined role under the Constitution, and one organ cannot encroach on the functional independence of the other two. Thus, the legislature cannot adjudicate, nor does the judiciary implement the laws. To do so would violate the ‘basic structure’ of the Constitution as enunciated by the Supreme Court itself in the celebrated case of Kesavananda Bharati almost half a century ago. It is immutable, the apex court had categorically pronounced. All public functionaries are either members of the legislature or the executive or the judiciary.

The proposed Lokpal will not be a member of the legislature, for he will not be an elected person. Nor will he be a member of the judiciary, as one cannot be a judge unless one is a law graduate, which is not the prescribed minimum qualification for the Lokpal. Hence, he will be a member of the senior executive selected without consultation with the UPSC, which is a Constitutional body. One of the most important ‘basic features’ is the separation of powers among the three coequal organs.

In terms of the same, the judiciary has no executive role. According to the Act, the Lokpal will be selected by an administrative committee to be set up by the Executive, comprising members of the higher judiciary. As the committee will be an executive entity, such a dispensation is unconstitutional in the sense that it violates the ‘basic structure’ of the Constitution.

In terms of ‘separation of powers’ under the Constitution as enunciated by the largest-ever Bench of the apex court itself, members of the judiciary cannot be a part of the executive. To do so is unconstitutional. The structure of the Lokpal is skewed. It will comprise ‘benches’ dominated by the judiciary. The Lokpal will essentially be an investigation authority, a kind of ‘supercop’ who is accountable to no one.

He will have authority over the Prime Minister, the elected Council of Ministers and the Members of Parliament, besides all-India Services and other Group ‘A’ services. Arguably the most basic feature of the doctrine of ‘basic features’ is the independence of the judiciary. Once it is diluted, all is lost. The Lokpal will retire at the age of 70. Judges of the Supreme Court retire at 65 whereas judges of High Courts retire at 62.

The Lokpal will comprise both serving and retired members of the higher judiciary, to be appointed by the Executive. Once the prospect of a postretirement bonanza appears within easy reach, it may seriously dilute the independence of the serving judiciary. One of the greatest jurists of the 20th century and former judge of the US Supreme Court, Robert H. Jackson, had warned of the serious consequences of such a dispensation ~ “A judge can be more easily bribed by ambition than by money.”

One often talks of the independence of the judiciary but from whom? From the executive; as the executive will select and appoint the Lokpal, the temptation to cozy up to the executive amongst some of the sitting judges may prove all too irresistible. The Lokpal will be structured in the form of ‘benches’ with multiple members. These ‘benches’ adjudicate, they cannot investigate. Ironically, the apex court had itself pronounced the law authoritatively in a landmark judgment almost fifty years ago, that the judiciary has no role in investigation of criminal offences.

It is the task of the executive. The judiciary comes into the picture only after the investigation is over. The law is well-settled, that the highest court in the land cannot exercise even its inherent powers to interfere in the course of investigation. The Lokpal, after investigation, will file the charge-sheet in the Special Court which will be manned by judicial magistrates, who are members of the subordinate Judiciary.

If the investigation is going to be supervised by Supreme Court and High Court judges, the accused can hardly expect a fair and objective trial from a member of the subordinate judiciary. The trial will be under the Criminal Code of the nation, arguably the finest Code in the democratic world. The safeguard built in the same has been done away with.

The arrangement is unconstitutional, especially in the case of Members of Parliament of both the Houses. After investigation, the chargesheet will be approved and finalized by the Lokpal without any consultation with the two of the highest Constitutional authorities in the country after the President ~ the Vice-President as the ex officio Chairman of the Upper House and the Speaker of the Lower House.

The Lokpal Act is an ordinary law, and it is open to serious doubt if such a law can override the Constitutional scheme. The Lokpal will merely inform the two highest Constitutional functionaries of the fact of prosecution, although the Supreme Court itself has held otherwise.