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Mainstream, VOL XLIX, No 34, August 13, 2011 - INDEPENDENCE DAY SPECIAL

Latest Lokpal Bill — Vital Changes Still Needed

Saturday 20 August 2011, by Rajindar Sachar


The much awaited Cabinet-approved Lokpal Bill is no surprise. The decision to exclude the Prime Minister is maintained, notwithstanding the proclaimed stand of Dr Manmohan Singh, the Prime Minister since 2004, that he wants to be included, but he has had to yield because of the Cabinet decision. This surrender of one’s conscientious opinion on a matter of vital public importance at the altar of petty considerations of party politics ill serves the Prime Minister’s reputation because in spite of all the scams in the present government, even his worst opponents preface their criticism by reiterating their faith in his personal integrity. His well-wishers still hope that the Prime Minister will yet assert himself and respect the sentiments of the masses than that of a small coterie for whom the party is above the nation and principled politics secondary. Why should he be the whipping boy—let his successor when the time comes face the people’s wrath by suggesting a change.

The argument that if allegations of corruption against the Prime Minister are allowed to be examined by the Lokpal, it will prejudicially affect the working of the government is a non- starter. The Bofors scandal was not about the quality of guns purchased, but the pay-off received in lieu thereof. Similarly the Kargil coffins scandal was not about the quality of the product but about the alleged pay-offs. The tragicomic provision that the Prime Minister will be covered after he demits office is like bolting the stable after the horses have run away. Can there be a more callous absurdity in public life than a corrupt Prime Minister continuing in office with immunity? If this decision on the Prime Minister’s exclusion is not modified, a veritable storm will ensue.

Keeping the judiciary out may be acceptable provided simultaneously a Judicial Standards and Accountability Bill and other connected Bills are likewise brought in legislation. One may call this legislation as Lokpal (Judiciary).

Members of Parliament are putting their case for exclusion from the Lokpal Bill by seeking cover under Article 105 of the Constitution, and for this they apparently have some marginal support from the widely criticised majority judgment (three against two) in the Narasimha Rao case (1999) (I believe the matter has been referred to a larger Bench). It may apparently be technically correct but it is certainly morally a reprehensible conduct and cannot certainly be pleaded by MPs to be excluded from the jurisdiction of the Lokpal.

The minority a judgment very aptly pointed out the absurdity of the argument that Article 105(2) exempts the legislator from being convicted on a charge of taking bribes and observed that this interpretation could lead to a charter for corruption so as to elevate Members of Parliament as “super-citizens, immune from criminal responsibility”.

It would indeed be ironic if a claim for immunity from prosecution, founded on the need to ensure the independence of Members of Parliament in exercising their right to speak or cast their vote in Parliament, could be put forward by a Member who has bartered away his independence by agreeing to speak or vote in a particular manner in lieu of illegal gratification that has been paid or promised. By claiming the immunity such a Member would only be seeking a licence to indulge in such corrupt conduct.

In other countries such a conduct of MPs is treated as criminal. Thus, as far back as 1875 Australian Courts have taken the view that an attempt to bribe a Member of the Legislature in order to influence his vote was a criminal offence and that there is no difference between paying money to a Member of Parliament to use his vote in a particular manner and paying him money for the said purpose outside Parliament.

The exemption of MPs from the ambit of the Lokpal would make a mockery of the legislation —the public already have a low opinion of legislators. Their criminal antecedents have cast a doubt on their honest working.

It is amazing that the Cabinet did not heed even to the pain and anguish of the Vice-President of India who, while speaking at the All India Whips’ Conference, gave the warning of the danger to public life thus: “The most important issue of concern today is the decreasing credibility of our legislatures as effective institutions capable of delivering public good and contributing effective formulation of laws.” “Exactly 23 per cent of MPs elected in 2004 had criminal cases registered against them—over half of these cases could lead to imprisonment of five years or more. The situation is worse in the case of MLAs, failing to discharge their two-fold brief, legislate and deliberate, and that the country’s top lawmaking body had fallen short of people’s expectations.”

The cynicism of the political parties is shown by the fact that in spite of this warning, the recent State elections show another trend of criminal nexus in elections: thus of the 824 newly elected MLAs in the recent elections in States, a total of 257 have criminal cases pending against them.

IN view of the above, one expects the sensitivity of legislators that they should take steps to seek the amendment of Article 105 of our Constitution. I have one more suggestion. As is well known, the politicisation of the criminal is a stark and dangerous reality. Even in Parliament there are nearly over 100 MPs having criminal cases pending against them. There has been the demand that tainted persons should not be allowed to contest elections. I feel that the law of Lokpal should provide that whenever the Lokpal takes a decision, after having the matter investigated, that the legislator has to be prosecuted for his misdemeanour, he should be deemed to be ineligible to continue as a legislator till he is proven innocent.

A serious flaw in the government Bill is the denial of power to the Lokpal to prosecute those accused of corruption. This is totally unacceptable. No self-respecting person will agree to be on the Lokpal body if his decisions are subject to control by the government.

If all parties could simultaneously agree to provide a strong Lok Ayukt, much criticism of the lower officials not being included under the Lokpal will disappear. (Personally I myself feel that extending the jurisdiction of the Lokpal right from the lowest official may hinder expeditious working of the Lokpal—the Lok Ayukt should be able to do so.) But in this the BJP would have to come out into the open because Modi is resisting constituting the Lok Ayukt at Gujarat for the last nine years.

The power for removal of a Lokpal should be vested in the seven-judge Bench of the Supreme Court of India. The government should not treat the Lokpal Bill as a battle of the people versus Parliament, as some indiscreet remarks of some Ministers seem to suggest. The government needs to be humble enough to recognise that power to take the ultimate decisions rests with the real sovereign under our Constitution—namely, the people—and not the temporary occupant, the government, which remains subordinate to the people.

The author, a retired Chief Justice of the Delhi High Court, was the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims, and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail:

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