Lokpal Legislation Debate Require Calmer Consideration
By Justice Rajindar Sachar
29 December, 2011
The debate in Parliament on the proposed Lokpal legislation has unfortunately touched a low nadir; instead of discussing the legislation in a sober atmosphere and with conscious effort to arrive at as much consensus as possible, the parties instead indulged in mutual attacks.
Governments furtive slip in of various quotas including the minorities was a deliberate ploy with on eye on U.P. Elections, notwithstanding the doubt on legality of it expressed by former Supreme Court Judges and jurists. Could even any one imagine that the selection committee of Prime Minister, leader of opposition, irrespective of their party affiliation and non political Chief Justice of India that they would not include as members from the amongst Muslims, and women, when any number of them are available on their own merit. Why this non issue was loud mouthed unless it is a device to stall the Lokpal legislation. Let us not forget that these Mulayam / Lallu groups were the ones who sabotaged women Reservation bill by wantonly insisting a sub quota in Women Reservation Bill thus embarrassing Sonia Gandhi and Sushma Swaraj who had earlier without any embarrassment embraced and congratulated each other at their victory in Lok Sabha, but had to beat a retreat in Rajya Sabha
The suggestion that if there are any allegations against the Prime Minister they would be decoratively pigeon holded and brought out after he had remitted office (which may be even 5 years later) does not make any sense, Are we living in a democracy or under a kingship who was supposed to be a representative of Divine. Recently a sitting Prime Minister of Italy who was forced to resign on corruption charge proved against him by a court magistrate.
Similarly Chirac, Prime minister of France has been sentenced to 7 years and the President of Israel being sent to jail on the grounds of moral impropriety.
The most contentions matter of C.B.I. remains unresolved. His appointment should be by a joint committee consisting of Lokpal and the standing committee of Parliament. Give C.B.I. director a fixed tenure for say five or 10 years. He should have full administrative control over the staff of C.B.I. and earmarked funds from the consolidated fund. There would be no interference with his day to day from the Central Government or Lokpal. However Lokpal would be entitled to ask or and receive reports from him at regular intervals and also authorized to convey its decisions on such matters. He shall not be removed from service except in the manner and on like grounds as a judge of the Supreme Court – the same manner of removal applies to the removal of Chief Election Commissioner.
I for one would not limit the choice necessarily to a police official and it could even be from outside the service. If it is decided to have a Chief Vigilance Commissioner, the same conditions and procedure will apply as applicable to Director of C.B.I.
Surprisingly not withstanding bitter wrangling on other aspects all members of the Parliament are unanimously agreeing to keep themselves immune from the ambit of Lokpal or even Directors C.B.I. for their corrupt actions and bribery if it is done inside the Parliament. To me this is scandalous and unacceptable.
In their defence Members of parliament invoke Article 105 of the Constitution, and the widely criticized majority judgment of (3 against 2) on in Narsimma Rao case (1999) (I believe the matter is referred to a larger bench).
The minority Judgment however warned that this interpretation could lead to 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, since 1875 in Australia.
To invoke Article 253 of the constitution for enacting Lok Ayukat is of doubtful legality and imperishable in our federal set up. Surely no state can resist the public sentiment built for Lok Ayukat.
The matter of Lokpal is too important and needs to be discussed more seriously and not under pressure of forth coming elections in Punjab and especially of U.P. Also the panicky reaction of Central government to Anna Hazare threat of fast compounded by the opposition wanting to cash on it when they went to Anna Hazare sit in to cooze upto him. Their puerile excuse that they wanted to explain their point of view is unacceptable Political Parties hold their own meetings to explain their position to the public. We go to Jantar Mantar to show our solidarity with the victims of forced displacement, and the illegal actions of the government on the deprived poor. The parties do not go to the sit in of a person they are now wanting to deride and ridicule. Of course I agree that Anna Hazare has full rights to muster support and arouse masses and exercise his democratic rights – and to put pressure on the government and even the parliament, to pass a particular law because the ultimate sovereign are the people. But there is a caveat that this discussion requires a calmer atmosphere. Could the parties unanimously agree to adjourn the discussions to be after the pressure of U.P. Elections is over with a pledge to pass the legislation as first item when it begins the next session.
As a measure of his genuine concern for strong Lokpal Anna Hazare, on his part, one hopes would reciprocate by not going on fast. He can rest assured that peoples determination to have a strong Lokpal is not so weak, as to let government avoid its solemn pledge to pass the bill in the next session of the parliament – if the government further prevaricates it most know that consequences could be monumental and no government can remain in permanent confrontation with its real masters, the people of India.
Justice Rajindar Sachar (retd) is a former Chief Justice of the High Court of Delhi
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