Jan Lokpal, cure worse than the disease - Kapil Sibal

PIB/Hyderabad Deccan News : 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 Lokpal Bill 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 or Lokayuktas 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, the Lokpal 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.
(PIB Features)



2012-01-06



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