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Drop the debate, enact the Lokpal law

Rajeev Dhavan | Print Edition: July 24, 2011

What started as a movement against corruption has become an expensive farce. Since 1966, Indian politics has played ping-pong with proposals for a Lokpal. Till 1977, the Lokpal proposal targeted both bureaucrats and ministers. From 1977 to 2010, ministers were targeted, and bureaucrats were laughing. In 2010, the United Progressive Alliance, or UPA, revived the Lokpal proposal to save itself from scam allegations. Riding the 'Anna' wave, the 'Jan' group declared that no politician would allow a decent Lokpal Bill to be drafted unless Jan leaders took over the process. Thus, a cabal positioned itself as a substitute for democracy.

But having forced the government's hand, the Jan team has now sent the 2010 Bill into limbo again. Broadly, the achievements of the Jan-UPA meet are: (i) bureaucrats have been included (ii) the focus is squarely on corruption (iii) the Lokpal will be a collegium appointed by a collegium (iv) it will have investigative capacity and powers, and (v) the Lokpal can send matters to special courts for prosecution.

Rajeev Dhavan
Rajeev Dhavan
The controversial areas are: (i) method of selection and removal of Lokpals, (ii) inclusion of the prime minister (the Bharatiya Janata Party, or BJP, had included the prime minister in its 2001 Bill but kept matters of intelligence and national security out of the purview of the Lokpal), (iii) inclusion of MPs and judges, and (iv) certain powers of the Lokpal, including the powers to issue letters rogatory, contempt notices and punishment.

Most of these issues can be resolved by the parliamentary process. It would be wrong for the Jan team to insist that their views prevail over the parliamentary process. It is sheer obstinacy to think that the government is necessarily wrong on all fronts. It is wrong on the issue of exempting the PM even if the Venkatachaliah Constitution Commission supports its stance. But the government is right on its views on MPs, judges and bureaucrats.

MPs are protected for their activities by parliamentary privilege as clarified by the Supreme Court in the Jharkhand bribery case. It is unreasonable to say that this restraint does not exist. Equally, judges are constitutionally protected. Some members of the Jan team are judge baiters, who have converted their preoccupations into a professional pastime. But judges will not go scot-free. A new Judicial Accountability Bill will take care of them.

The government is wrong on the issue of exempting the Prime Minister even if it was supported by the Venkatachaliah Constitution Commission
Bureaucrats fall under the Lokpal but disciplinary action against them must vest with the government, which alone has the power under the Constitution to discipline civil servants. This power cannot be abdicated to the Lokpal. There is no point pretending that the constitutional restraints of parliamentary privilege, judicial independence and civil service protection do not exist. Nor can they be brushed away by constitutional illiteracy in the name of 'Jan' power.

Union minister Salman Khurshid reports that at the first meeting Jan representative Shanti Bhushan thought this was an exercise of rewriting the Constitution. The Lokpal discussions are not a Constituent Assembly in continuous session. Amendments to the Constitution can be made. But these are structural issues for Parliament on which the Jan team cannot be the sole determinant.

Democracy seems to be the swansong of both the government and the Jan team. The government's view is that the Constitution has set up "government by institution" and democratic forces must discipline themselves to use these designated processes and institutions. The Jan approach is that the democratic voice of the people cannot be procedurally silenced. Both are right. But there has to be a meeting ground. Any eventual change or enactment on these weighty issues has to go to Parliament. It is not for the Jan team to say that unless the government toes the Jan team's line, democracy has failed.

Even if the Jan team is a voice of democracy, it is not its sole spokesman. Populist and popular support against corruption cannot make the Jan team a delegate of the people with the authority to override the government. What the Jan initiative has ensured is that the Lokpal initiative, which collapsed in 1968, 1971, 1977, 1985, 1989, 1996, 1998, 2001 and 2005, should not collapse in 2010-11. In 1968 and 1971, the Bills were passed by the Lok Sabha but lapsed by its dissolution. Now, the Lokpal Bill has taken centrestage.

But, pre-enactment discussions on the basis of green and white papers are eminently proper in parliamentary democracy. In our case, the government Bill became a green paper. The flaw this time was that instead of public responses, the self-styled Anna 'Jan' group became exclusive representatives of the people. This was presumptuous, arrogant and usurpatory. Fasts at Jantar Mantar followed by elite selection of spokesmen does not create democratic credibility. Parallels with Gandhiji are misplaced.

Now, there should not be a war of attrition between the government and the Jan team. This consultative exercise is over. The government should now state its view in a document as well as a Bill for Parliament. But the responsibility for all this does not lie with the government. The attitude of the Opposition has to be constructive and not destructive. The BJP is simply watching the mess and hoping that it gets embarrassingly worse. The Left is beginning to reveal its views. But unless political parties are clear, a future Bill will meander into oblivion as it has in the past.

Corruption in India has gone over the top, going beyond the people's experience of petty day-to-day corruption. The nexus between business and politics manufactures corruption in billions. To unearth these scams requires skill, expertise and investigation by a powerful independent body.

In my view the earlier Lokpal debates are confusing and should be abandoned. What we really want is an Anti-Corruption Commission with investigative and prosecutorial powers. Right now, we do not want a classic Lokpal, but only an Anti-Corruption Commission. Change the name.

Narrow the focus. Ensure democratic response. Introduce the Bill in the Rajya Sabha to ensure it does not lapse. Get on with it.

The author is a Supreme Court lawyer

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