After the French Revolution Napoleon Bonaparte became Emperor of France. He introduced in 1804 new civil and criminal legal codes that came to be known as the Napoleonic Code. As a soldier and administrator he had clear ideas about what was required. He gave explicit instructions to a commission of four jurists who rapidly translated his wishes into laws. It was the first modern legal code which strongly influenced the law of many countries. It was a major departure from prevalent feudal laws. Historians regard it as one of the few documents to have influenced the whole world. Till today it survives in France without change. Napoleon accomplished this because he understood the architecture of governance. Jurists may quibble about words and meaning. They seldom appreciate the practical challenge of providing sound administration.
Had Napoleon been alive today what would he have thought of the Lokpal Bill?
The politicians and lawyers of the government and civil society engaged in fierce debate regarding the drafting of the Bill reveal pathetic ignorance about the architecture of governance. In a newspaper interview Mr. Prashant Bhushan supporting the Lokpal’s power to oversee the judiciary was asked about the Lokpal’s accountability. He said that the Lokpal should be under judicial purview. So he wants the Lokpal to oversee the judiciary and the judiciary to oversee the Lokpal! Even the manager of any small firm would tell him how daft this arrangement would be. It would lead to conflict, hostility and deadlock.
Digvijay Singh, Mr. Arvind Kejriwal and several others are also demanding that the Prime Minister and the judiciary should be under the purview of the proposed Lokpal. Mr. Kejriwal wrote that since the CBI functioned under the PMO there should be an independent agency to probe the PM. Fair enough. But how would the Lokpal be accountable? Mr. Digvijay Singh provided this profound piece of wisdom. He said: “There should be a system to ensure that the Lokpal does not misuse his powers.” Exactly! But what might that system be? There is only deafening silence with regard to that. Indeed, addressing that question should have been the starting point of the Lokpal exercise.
It might be recalled that I had petitioned former President Zail Singh for permission to prosecute Prime Minister Rajiv Gandhi after it was confirmed that he had lied to Parliament and to senior military commanders regarding payments made in the Bofors deal. The President was surrounded by mindless advisers loyal to the Dynasty who warned him about his arrest if he granted permission. Therefore a pre-emptive action to dismiss the PM was touted. After mulling over this wholly unnecessary option Zail Singh chickened out and refused to grant me permission although prima facie evidence against the PM was ironclad. All that the President was required to do was to grant me permission and allow the courts to decide the case. If the courts had admitted the case the matter would have been resolved by Parliament after deciding how to deal with a PM facing a corruption case in court. That is how the system should have worked. It didn’t because it was not allowed to.
If the proposed Lokpal sees the light of day and a similar situation recurs, who will grant permission to prosecute the PM? Apparently the Lokpal would not need anyone’s permission to investigate and prosecute the PM. The Lokpal would either control the CBI or create a new independent investigative agency under its command. By acquiring the power to prosecute the Lokpal would poach on the powers of the President. By controlling the CBI or a similar agency the Lokpal would poach on the powers of the Prime Minister and the Home Ministry. And who would appoint this monstrously conceived entity that could probe and prosecute all and sundry with accountability to none? The proposed Lokpal surely would not be accountable to Parliament because all the MPs in or outside the House would also be under its purview.
The view has been expressed that the responsibilities of the Lokpal and the Central Vigilance Commission (CVC) would overlap. No problem. Veteran journalist Mr. Kuldip Nayar in an article has suggested that because the CVC has not delivered satisfactory results it should be scrapped and replaced by the Lokpal. The option of creating new undefined posts seems to be very popular in India. Why cannot the CVC be reformed to provide adequate results? For that we would have to analyze its functioning to determine why governance and administration are failing. That is hard work. It is much more exciting to create a new wonder post that would with the wave of a wand banish all corruption…
So if Napoleon were alive today how would he have reacted to the Lokpal Bill?
I venture to opine that in the light of the Constitution and prevalent laws he would have thrown the Lokpal Bill in the waste paper basket. He would have made the CBI and a newly created Judicial Reforms Commission into constitutional bodies accountable to the President. He would have allowed the President as the elective post with the widest mandate in the country, as the Commander-in-Chief of the armed forces, as the single office holder under oath with the responsibility to preserve and protect the Constitution and laws, and as the office bearer who appoints, transfers, promotes and demotes all government officials, to oversee all the constitutional bodies made accountable to him. The President would act as the Super Lokpal to address corruption and restore governance. If the President despite the widest mandate for the post misbehaves, Parliament can remove him through impeachment. That is how our Constitution was supposed to work. That is what the architecture of governance suggests. That is how I think Napoleon were he alive today would have decided.