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Legal adventurism

Publication Date : 24-07-2014

 

India's new government is settling down. Price rise  and widespread corruption were the two issues over which the previous dispensation had faced considerable flak. The need for steps against corruption, including legislative, is unexceptionable. But the quack medicine prescribed and about to be administered  may prove to be worse than the disease. And the Parliament, in its wisdom, rushed through a bill that was unconstitutional.

In matters legislative, one must always be cautious as an unjust law once incorporated in the statute book can be a source of chronic problems for not only the government but society at large. The Founding Fathers of the Republic had drafted arguably the finest Constitution in the world after three years of assiduous labour.

It was Bacon, one of the greatest jurists, who had once cautioned modern constitutional  democracies - “A bad law is the worst tyranny.” The first Jan Lokpal Bill was a piece of highly toxic legislation.  Admittedly, some of its toxicity was neutralised by the government in the revised version of the ‘official’  Lokpal Bill. But it still remained largely unconstitutional, and has now unfortunately become an Act. Parliament was badly advised.

All laws must conform to the fundamental law of the land - the Constitution.  Any law in violation of the same will be a ‘dead letter’ in the sense that it will be void ab initio, once challenged in a court of law. The paradox must inform all debate on the issue. Ostensibly, the Lokpal was conceived to liberate the common man from the tyranny of the petty bureaucrat, specifically the omnipotent ‘inspector’. It will do no such thing.

The ‘basic structure’ of the Constitution was first defined by a full bench of the Supreme Court in the celebrated case of Keshvananda Bharati almost four decades back.  According to the judgment, the Constitution alone is sovereign and no organ of the State can violate he document ~ not the Executive, not the Judiciary, not even Parliament. Two features of the ‘basic structure’ are relevant in this connection - ‘separation of powers’ and the observance of the ‘basic norms of democracy’.

The concept of   ‘separation of powers’ stipulates that just as the executive cannot encroach on the adjudicating powers of the judiciary, likewise the judiciary ought not to be entrusted with executive authority. Secondly, it is a basic norm in democratic jurisprudence that all executive authorities must be accountable. The only authority that is not accountable is the Chief Martial Law Administrator.

The Lokpal will be an executive authority not accountable to anyone, not even to Parliament. This will be a violation of the basic norms of democratic functioning. The Lokpal shall be selected by a  committee comprising, inter alia, the sitting judges of the Supreme Court. This too is unconstitutional.

The Selection Committee will be an administrative committee under the Executive. The judiciary cannot be entrusted with executive functioning. To do so would be a violation of the ‘basic structure’ of the Constitution. There is every probability that the Chief Justice of India might  refuse to nominate a member of the highest court to an executive committee.

The Lokpal shall be a multi-member body which may be headed by the Chief Justice of India or a judge of the Supreme Court. This would be a travesty of the Constitution.  The Lokpal will essentially be an investigative agency which shall investigate complaints against public servants under the Criminal Code.  This Code, applicable in all the states, does not envisage any role for the Supreme Court; it does not even mention the apex judiciary.

The Criminal Code exclusively entrusts the police with investigative authority. The high courts have been entrusted with blanket powers to pass any order on the executive or a subordinate court “in the interests of justice”. But there is one limitation that has been imposed, and ironically enough by the Supreme Court itself.
The high courts cannot interfere during the course of police investigation. Hence, to confer investigative powers on the members of the highest judiciary, as the Lokpal Act provides, would be tantamount to turning the Criminal Code upside down.

The judiciary does not supervise investigation. It is the settled law of the land that the court comes into the picture only after the investigation is complete. Once the Lokpal police completes the investigation, the chargesheet will be submitted in the court of a special magistrate, who is a member of the subordinate judiciary. If the investigation were to be supervised by Supreme Court judges, the accused is hardly likely to get any justice in the court of a subordinate magistrate.

At present, the judges of the Supreme Court and the High Courts enjoy complete immunity from any discussion about their functioning in Parliament. There is a bar on questions being raised about their conduct as members of the higher judiciary. But this protection is available to judges qua judges, i.e. judges acting judicially. Once the judiciary allows itself to be dragged into executive functioning, this immunity may be unavailable. Imagine the performance of the Supreme Court Chief Justice/Judges, acting as Lokpal being discussed in the Parliament.

The Constitution confers concurrent Writ jurisdiction on the High Courts (and the Supreme Court) whereby a citizen can directly approach the judiciary in case an executive authority violates any of his Fundamental Rights. Legally, the High Court can summon any official to appear before it and explain. If Supreme Court judges start acting as executive authorities, and a citizen were to approach the High Court, it would be a grave Constitutional anomaly if high courts start summoning Supreme Court judges.

The Act provides that not less than 50 per cent members shall be appointed on the basis of their caste or community, in other words a caste-based quota. Even Judicial members of the Lokpal may have to be appointed on the basis of their caste. Mercifully, the judiciary is - so far at least - free from the cancer of caste and community-based reservations. This would inject, through the backdoor the poison of caste in the only institution that recognises merit as the sole criterion of appointment.

The Lokpal has been empowered to ask the Central Government to order the suspension of any public servant against whom investigation is launched. The government shall normally comply with the Lokpal’s directions. In the case of Central Services and all-India services, the President is the appointing and disciplinary authority. In other words, the President of India will ‘ordinarily’ be bound by the directions of the Lokpal.

In a word, the Lokpal will be an extra-Constitutional authority. In the historical perspective, India’s democracy is still fledgling in character. It must guard itself against such legal adventurism.

(The writer is a retired IAS officer)

 

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