Mr. LK Advani accused the UPA government of being immersed in corruption. Finance Minister Pranab Mukherjee retorted by asking why the NDA government did not introduce the Jan Lokpal Bill when it was in power. Mr. Mukherjee is very intelligent. Unfortunately he thinks others are stupid. He could have pointed out to Mr. Advani the various cases of corruption that taint the BJP. Instead he invoked the Lokpal Bill as the litmus test for fighting corruption. There is a method in this madness. It calls for some plain speaking. It is time to point out that the entire hysteria whipped up over the appointment of a Lokpal as the means to end all corruption is horribly misconceived.
|We do not need a distant Lokpal to address the crisis. We need a government that can perform according to existing law and not lie and mislead the public.
When the Constitution provides powers to the President elected by all the MPs and all the MLAs of the nation, where is the need for a Lokpal to liberate investigative agencies from the control of the Union Cabinet?
A legal luminary charged with the responsibility to draft the proposed Jan Lokpal Bill solemnly said: “We need a strong law to fight corruption.”
This may mislead most people.
The present endeavor is not related to passing new criminal laws by which corruption will be dealt. It is related primarily to creating a new and powerful office that will ensure that existing criminal law is implemented.
The need for creating such an office arose from the fact that investigative agencies probing corruption of government ministers and officials were accountable to the same body of persons. This was so because before proceeding with any investigation or prosecution involving a government official the agency first had to obtain permission from the very government which was being probed. This robbed investigation of all credence. The investigative agencies cannot be liberated from the government’s stranglehold by making them totally autonomous. Investigators have to be made accountable to some higher body. That is the rationale for creating the Lokpal.
When inadequate utilization of existing law results in failure to provide results, what do our politicians do? They create a new law. Were the founding fathers of our Constitution so inept as to make inadequate laws for dealing with corruption? They were a thousand times more intelligent than the morons of the political class who rule us.
Let us understand what the magic wand of the proposed Lokpal will actually entail.
The Lokpal will have the jurisdiction to probe allegations of corruption against ministers, bureaucrats and judges. No sanction from the government to probe or prosecute them would be required because the Lokpal would be empowered to decide. The Lokpal would have a separate new investigative agency set up to probe them because the CBI functions under the government. Therefore along with the Lokpal a new investigative agency parallel to the CBI would also have to be created.
Who will appoint the Lokpal?
That is still being debated. The outrageous suggestion that a collegium including Nobel Laureates and Magsasay Award winners should appoint the Lokpal has also been made! To whom will the Lokpal be accountable? As a constitutional post the Lokpal would be accountable to the President. In other words like the Election Commission and the Central Vigilance Commissioner the Lokpal would also be accountable to the President who has been rendered into a virtual dummy of the Union cabinet. And that brings us to the nub of the problem.
The problem of unaddressed corruption and flawed governance can safely be traced to the brazen distortion of our written Constitution which has been subverted by politicians since the days of Pandit Nehru by treating the President as a titular head stripped of real responsibility. Because the government felt uncomfortable with the huge gap between the written word of the Constitution and its implementation in practice the 42nd Amendment to curtail the powers of the President was introduced. But despite this Amendment the President still has vast responsibilities that the office is not allowed to discharge due to fraudulently created convention.
Even now Article 74 states that the President may exercise powers 'directly'. Article 53 (1) which states that executive power is vested in the President to be exercised 'either directly or through officers subordinate' to the President is not negated by Article 74 (1) even after the 43rd Amendment which enjoins upon the President to act in accordance with the advice tendered by the Council of Ministers. Not all duties and occasions require the cabinet’s advice. Instead, invoking Article 78 (a) the President can order the Prime Minister to report regularly each week ‘the affairs of the Union and proposals for legislation'. The President through Article 78 (c) can direct the cabinet to consider any decision by a Minister not discussed by the Cabinet and then submit a report on the subject. The President through Article 86 (1) and (2) can decide to address either or both Houses of Parliament and direct Parliament to discuss any subject. The President can ask Parliament to give substance to the unimplemented Article 263 and set up a permanent Inter-State Council to settle disputes between States, or between States and the Centre. Logically were such a Council established the President elected by Parliament and all the State assemblies as the only office holder with a nationwide mandate would be required to head it. In short, our Constitution empowers the President to act as a guide and monitor of the cabinet without direct participation in execution of policy.
However, in the domain of implementing laws the President is supreme. It is the only elective office with the widest mandate in the country under oath to preserve and protect the Constitution and Laws. Every appointment, transfer, promotion and demotion of an official is in the name of the President. To honour the oath of office to preserve laws that include all official rules the President’s discretion is final. By a minor amendment making the terms of the President, Parliament and all Assemblies fixed and co-terminus the voters when supporting candidates to Parliament and Assemblies would also through indirect election choose their candidate for President. Thereby within the basic structure of the Constitution the President would be given a popular electoral mandate.
When the Constitution provides such powers to the President elected by all the MPs and all the MLAs of the nation, where is the need for a Lokpal to liberate investigative agencies from the control of the Union Cabinet?
Make CBI a constitutional body accountable to the President!
Today India is being simultaneously battered by the 2G scam, the CWG scam, the Hasan Ali scam, the Adarsh scam, the Koda mining scam, the Fake Pilots scam and a host of other scams.
We do not need a distant Lokpal to address the crisis. We need a government that can perform according to existing law and not lie and mislead the public.
For systemic reform we need a President to function as the founding fathers of the Constitution intended. For immediate reform we need the government to act and not prevaricate and deceive. That is what civil society should insist. When a house is on fire one does not prepare a draft Bill to make a law to establish a fire station. One puts out the fire. India is aflame. The youth are aroused. If quick results are not forthcoming the situation could get ugly.
Even as the above was being written a piquant situation has arisen related to the 2G Spectrum case being heard in the Supreme Court (SC) that reinforces my argument. The SC has overruled the Union government and insisted on appointing Mr. Uday Lalit as the Special Prosecutor for the 2G Spectrum case. This scribe had earlier pointed out that Mr. Lalit who is also defending Mr. Hasan Ali can land in a potential conflict of interest. Some of the accused in the 2G scam may have used Mr. Hasan Ali’s services for money laundering. Subsequently quoting a technicality the government wanted to withdraw Mr. Lalit’s name as Special Prosecutor. The SC will not allow that. The court has encroached into the domain of the executive by invoking Article 142 of the Constitution.
Article 142 states: “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it…” The Judges invoked this Article to overrule the executive from exercising its responsibility by saying: “We are issuing this direction in the interest of substantive justice.” In what manner would justice not be served if another lawyer not vulnerable to potential conflict of interest were appointed as Special Prosecutor? It defies belief that across India no other lawyer with adequate competence to act as Special Prosecutor exists. Mr. Ram Jethmalani had already offered his services for the post but was overlooked by the court. There could be other suitable candidates. The SC’s decision appears to be arbitrary and irrational. Nevertheless by invoking Article 142 the judiciary has assumed the responsibility of the executive. Is there no remedy for what arguably might be subversion of democracy which demands the separation of powers?
The remedy is simple and available. The President can consider the views of the executive and the judiciary and decide which deserve endorsement. If the SC opinion is considered wrong the President can simply refuse to appoint Mr. Lalit as the Special Prosecutor. All appointments are made in the name of the President. Article 53 of the Constitution states: “The executive power of the Union shall be vested in the President, and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.” The Supreme Court may invoke Article 142 to overrule the Cabinet. It cannot overrule the President. The SC cannot issue notification of the appointment. The President makes all official appointments. The buck stops with the President.