Key Issues in the Lokpal Debate

I am writing this as a quick primer for dummies on some key issues involved in the Lokpal bill.

1. Appointments: The key question has been whether the political as opposed to the “apolitical” government must have primacy in the selection committee and whether a search committee with civil society participation (5/10 members) charged with identifying suitable candidates ought to be a necessary requirement (government unlike the JLP bill does not require it leaving it to the selection committee to decide upon). The sarkari version gives the government primacy over the appointments (actually only 4/8 will be from the ruling party/coalition but the suspicion is that a fifth member from the National Academy of Sciences might be someone chosen for pro-government leaning thus conferring majority control) whereas Team Anna wants appointees outside the Executive branch and not beholden to it to dominate (as formulated in the JLP). We do not know as of this moment how this issue has been resolved.

The advantage of “apolitical” appointees is admittedly a greater willingness to pursue investigations free from political interference. On the other hand, major concerns include a loose cannon Lokpal driving its own agenda from the pulpit (typically left liberal), an appointment process rigged in favor of close associates of associates of the “civil society” search committee which would only worsen the first problem and a government forced into paralysis as a consequence of such activism. The BJP-led opposition does not approve of this either because they presumably want to have a greater say in the nomination process. This is good in the sense that a consensus candidate who commands broad support across the political spectrum is preferable to one who only enjoys the support of the ruling party; the downside is that a bad choice who abuses his authority could do greater harm to the institution than otherwise since the individual can more reliably rely on the support of the opposition for his actions and future consensus candidates may be less able to reverse bad precedents leading to a long term decline of the state’s political authority. I do not know but suspect that a compromise will be along these lines – a bigger opposition and/or a “civil society” role in the search for acceptable candidates. In my view, the choice ought to be made by the political leadership, preferably the government (which alone has the mandate to govern and is accountable to parliament) but opportunity to scrutinize the bonafides of the chosen candidates should be provided to “civil society” and the general public as also parliament. Perhaps a system of government nomination and parliamentary approval would be good though the government may not accept such a proposal for reasons of practical feasibility.

2. Inclusion of the PM: This appears to be a foregone conclusion as of this moment. The concern here has been that given our political culture, witch hunts can be launched easily by an activist Lokpal which will seriously erode the political authority of the prime minister and thereby his/her ability to function. This is a real concern if the US experience of creating the Office of Independent Counsel post-Watergate in the late 1970s is anything to go by – the prediction of its political consequences on the Presidency by Justice Scalia in his lone dissent in Morrison v. Olson turned out to be remarkably prescient. The US Congress, much chastened by the bad experience, quietly allowed it to lapse later on. Thus, if a minister were to resign, the PM can assume control of the portfolio or appoint another minister but if the PM him/herself is under a cloud facing an investigation with interrogation, raids, etc. the ensuing media/political circus may render it very difficult for him/her to remain in office let alone function. The counterargument which the BJP has made is how a PM can remain in office if there is prima facie evidence of him/her accepting a bribe. This is a valid question but we must not forget that the PM is accountable to parliament and the uproar that such evidence will cause will in all probability lead to his/her resignation and prosecution in the present day and age. Furthermore, we have inquiries supervised by the SC and JPCs which will also put considerable pressure on the government of the day. Also, corruption problems in government more often than not stem from systemic infirmities rather than owing to a particular PM’s personal predilection for graft. A prime minister is very high up the hierarchy and is usually savvy enough to ensure sufficient distance between him/herself and the proxy who actually accepts money/favors on his/her behalf so that it may be quite difficult (and futile) to obtain a clear chain of evidence leading all the way up to the very top. Overall, in my view, the benefits of inclusion are outweighed by the demerits but the implications, one way or the other, at least in the forseeable future are probably more in the realm of political theater than practice.

3. Privileges of MPs: Article 105(2) of the Constitution which protects MPs from court proceedings with respect to anything said or any vote cast in parliament or any committee thereof has been interpreted by the SC to bar the prosecution of MPs for accepting bribes in exchange for their voting in parliament. This decision has been controversial with critics contending that the right of voting/speaking in the House is independent of accepting any money outside it and that the Prevention of Corruption Act, 1988 makes the acceptance of bribes itself a crime even without requiring the actual demonstration of a quid pro quo. The other interesting distinction that the judgment makes is between one who votes/speaks in parliament versus one who may choose not to speak/abstain from voting even as a conscious political choice which would nullify his/her protection. Regardless of its correctness, this pronouncement by a constitution bench is the law of the land and cannot therefore be overturned by ordinary legislation (such as the present Lokpal bill) but would require either a reconsideration of the judgment by the SC or a constitutional amendment. This is obvious to even laymen. Yet, remarkably, Team Anna which comprises of three lawyers of considerable eminence is insisting on bringing MPs who accept bribes within the ambit of the bill despite its patent unconstitutionality. Why so? I can only speculate but the answer appears to lie in the realm of politics rather than law.

The SC of today is a much weaker institution than the SC of 1998 (when this judgment was delivered) who have all since retired. Today’s court is much more beholden to “civil society” ideologically and politically or at the very least, does not want to incur its wrath. Furthermore, given the strength of the anti-corruption movement, just as with the Bhopal gas tragedy issue, Team Anna has probably assessed that the judges’ survival instinct rather than fidelity to institutional integrity will dominate if the matter comes before the Court: they will therefore be additionally wary of defending a politically incorrect precedent. This follows, a fortiori, if parliament has given its imprimatur to such a provision of the Lokpal bill. Hence, in the present political climate, the Court would likely find some justification to retain the provision and enforce it rather than throw it out. It is this cold (and correct) political calculation about the pusillanimity of the judiciary rather than any legal principle which I suspect underlies Team Anna’s insistence. Very likely, the government is aware of this as well which is why it has been adamantly fighting to retain it (hypothetically at least, in another day and age with a strong SC, the GoI may have given in and incorporated it rest assured that it would anyway be thrown out by the judiciary). I do not know how the tangle has been resolved (if at all) but if the government has chosen to give in and adopt the language that Team Anna wants, the odds are good that passing the buck will likely not end in its favor. Some might ask whether this is not a good thing given that the public does not want MPs to be accepting bribes after all. The answer is that this is about not so much MPs’ privileges at all but rather the broader principle of supremacy of the constitution over ordinary statutes. If a weak SC upholds a legislative enactment without convincing justification (with due respect to the present SC, today’s judges do not have as good a crafting ability as their predecessors), it raises the question what worth the constitution has at all if its authority can be undermined primarily for reasons of political expediency. In truth, this has long been happening; it is just that it has become more blatant in recent times – unpersuasive, convoluted reasoning that ignores clear constitutional precedents such as may occur in this case will hasten that decline of the sanctity of rule of law to the detriment of all. A better way to do it would be for the government to petition the court in an appropriate case to reconsider this judgment. Alternatively, it can build support for a constitutional amendment. Somehow, neither of these relatively sensible approaches are even being discussed.

4. Inclusion of the lower bureaucracy within the jurisdiction of the Lokpal: Team Anna’s argument is that the wide ambit is necessary both to cater to the corruption confronted by the ordinary man as well as at the political level. Moreover, they have claimed that past experience suggests that the two are connected and therefore should come under a common umbrella. The opposing view is that it will give too much power to a single body which is not desirable. Moreover, there are other institutions such as the vigilance commission empowered to deal with this, a point Team Anna is not ready to buy on the ground that all such institutions have failed in their objective. The government is now reportedly drafting a new law to deal with grievances the public has with the lower bureaucracy. My own view is that Team Anna’s objections do have force but the solution they advocate is neither unique nor essential to resolve it. Aruna Roy’s suggestion has merit here: multiple institutions can be empowered to deal with corruption in different segments of the government and so long as they enjoy a comparable measure of authority and independence, wherever necessary, a coordinated investigation can be a suitable replacement which avoids the pitfall of concentration of power. Moreover, conferring all authority to a single Lokpal will render existing bodies redundant and wasteful, a situation that can be prevented by modifying their mandates suitably instead of superimposing an altogether new set up over and above the existing one. Since this raises a different set of issues, my own preference is for separate legislation to deal with it. It remains to be seen how the government will resolve this dispute and what Jairam Ramesh is cooking up.

5. Lokpal for states: State legislatures being the proper fora to decide this question, this demand of Team Anna is a clear infringement of the federal scheme of the constitution and ought to be rejected outright. If the government does so, it is likely to be supported by the BJP as well which is running governments in several states. It remains to be seen how this is resolved.

Update: Raju Das in his comment pointed out that the concurrent list allows for enactments such as this. This is a plausible view though the constitutionality would depend on the specifics of the bill. Karnataka Lok Ayukta Act for example reads in its preamble that it is meant for the purpose of “making inquiries into administrative actions relatable to matters specified in List II (state) or List III (concurrent) of the 7th Schedule of the Constitution”. Other matters such as those in the second schedule are also excluded. However, no such limitation on subjects that may be inquired into by the state/central units is to be found in the present Lokpal bill. Entry 8, List I (Union) includes “CBI and investigation” empowering parliament to legislate on it.

Since state Lok Ayuktas are to be appointed independently, the bill may well not be unconstitutional in letter but if passed without adequate consultation with the states, it almost certainly violates the federal scheme in spirit and at the very least amounts to bad practice. Moreover, several states have their own Lok Ayuktas and each may have its own unique features – a one size fits all approach may not be desirable.

6. Penalty for frivolous complaints: The sarkari bill provides for any official victimized by a “false and frivolous” complaint to lodge a complaint against the accuser with the penalty for this ranging from 2-5 years of imprisonment along with a fine of up to two lakhs. That the penalty is too high and risk-free for the official who lodges it (the government will bear his/her litigating expenses) has been an important allegation by Team Anna. My own belief is that this provision has been inserted in lieu of the waiver of sanctioning authority for prosecution. In the absence of either of those restrictions, there is nothing to prevent motivated complaints against officials – particularly honest ones who may be expected to cultivate many enemies (a weaker version of the same provision providing for a maximum penalty of one lakh rupees and imprisonment up to three months is provided for in the JLP bill as well but the official is not empowered to file complaints against the petitioner). A free for all system which allows for politically motivated litigation much like PILs filed in our courts would no doubt be of benefit to the lawyer-activists leading this movement but if allowed, it could virtually cripple the administration of the state. It would be interesting to find out what the two sides have agreed upon. I do not see why a compromise cannot be considered that would reinsert the sanctioning requirement while enjoining the state to decide the matter in a time bound manner and require it to give reasons for any rejection. An appellate review board may also be provided for.

7. Citizens’ Charter: Team Anna has sought an enforceable charter of citizens’ rights which would entitle them to timely and satisfactory services by government officials. The government has agreed to the charter but not for their enforceability through sanctions. A concession by the government is quite possible here. In my view, Team Anna’s demand is reasonable but the conditions proposed in the JLP bill (prior assessment of resources to deal with the charter, redressal within 30 days, departmental punishment by Lokpal for failure to meet these conditions) are too stringent for the government to accept. Reasonable leeway ought to be provided for resource limitations, unforseen circumstances, etc.