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Monday, 17 October 2011

Why the Lokpal must be a constitutional authority

The Union law minister’s recent announcement that the Centre plans to make the institution of the Lokpal a constitutional functionary rather than a mere creature of Parliament deserves to be welcomed.

There were howls of protests when the Congress party’s Rahul Gandhi first made this suggestion in a speech in Parliament during discussion to consider Anna Hazare’s demands and to make him break his fast. It was seen by the detractors of the government as a move to delay the Lokpal bill’s passage.

Such suspicions are entirely well founded because the political class has succeeded in defeating all attempts to create such an institution for over 40 years. However, care needs to be taken that such suspicions do not sound the death knell of a relevant suggestion that needs serious consideration.

The consensus that is emerging is that the Lokpal will be a very powerful institution that will keep a watchful eye on all members of the executive from the prime minister downwards, the entire bureaucracy and may even have some oversight over the conduct of parliamentarians. Such an institution must become part of the constitutional scheme rather than be created merely by an act of Parliament. The point will be easy to understand when we realise that all the important instrumentalities of the state, be it the comptroller and auditor general, the election commission, attorney general, public service commission, finance commission, to name only a few, find mention in the constitution.

The inclusion of the Lokpal in the Constitution augurs well for its long-term stability and proper functioning. Once the Lokpal gets the Constitution’s protective umbrella, it will be far more difficult to tamper with the institution than if it is created merely by an Act of Parliament. We must not forget that every nation has its moments of political turbulence. India faced a serious political crisis during the 1970s when passions were raised to a fever pitch and the country’s institutions suffered much. We must ensure that the Lokpal is given such an exalted status that it is beyond the reach of anyone to tamper with. Inclusion in the Constitution is the best method to achieve this goal.

It is undoubtedly true that it will take far more time to get a constitutional amendment passed than to rush the Lokpal bill through Parliament. Yet, the wait may be worth the while because it will give us a chance to come up with a well thought out scheme that will stand the test of time. In the meanwhile, all citizens should see it as their duty to support people like Anna Haraze to keep up the pressure on politicians to act with utmost urgency.

Anna’s movement has helped in creating a national consensus that something concrete has to be done about corruption. This consensus will not dissipate so easily. We will have an effective Lokpal. It is only a question of time.

What has been said about the Lokpal is equally valid about judicial accountability. Parliament can only make laws on subject for which it has authority under the Constitution. Presently the only power that Parliament has with regard to Supreme Court and high court judges is their removal from office by a protracted process. It has the further power to transfer high court judges. On all other matters, the Constitution is absolutely silent. This fact has been highlighted by the Supreme Court in a number of judgements.

Seeking judicial accountability through removal of judges is hardly the best way to achieve the goal. Transfer of judges has also been very controversial. It is important to have an excellent method of selecting judges so that the issue of judicial accountability is dealt with at the very inception. Similarly, there is need for a constitutional provision to inflict minor penalties on judges who are guilty of misconduct.

We need well thought out amendments to the Constitution to give authority to Parliament to enact laws regarding appointment, transfer, punishment, removal of judges and for all matters connected therewith.

The Judicial Standards and Accountability Bill, now before Parliament, is just not an adequate answer to the issue of judicial accountability for a number of reasons. We need a judiciary that is fiercely independent and at the same time accountable. This is a delicate task which should be accomplished with foresight and care. If we act in haste, we may regret in leisure.


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