ARTICLES FROM THE SUNDAY GUARDIAN
Copyright. All rights reserved. Ram Jethmalani. 2017.
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I had written last week about how the process of selection of the Selection Committee to be constituted to select the Lokpal and its members, has already courted controversy by the arbitrary appointment of a member, the "eminent jurist", into the selection panel. This is merely the beginning and does not augur well. Already parallels are being drawn with the selection of P.J. Thomas for CVC.
If one goes deeper into the contents of the Lokpal and Lokayuktas Act 2013, many more loopholes, grey areas and black holes become visible, surely providing great solace to every doyen of corruption in our country. The Act ensures that the selection of the Lokpal and members will follow the usual pattern of patronage and political loyalty that so debilitates our polity.
Let me begin with the constitution of the Lokpal and its selection process.
Section(3) of the Act states that Lokpal shall consist of a chairperson and such number of members not exceeding eight, out of whom 50% shall be judicial members. Thus the maximum strength of Lokpal is nine. The proviso stipulates that not less than 50% of the members of the Lokpal shall be from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, other Backward Classes, Minorities and Women. That would require that out of the maximum of eight posts, four will have to be filled by persons from SCs, STs, OBCs, minorities and women, a rather challenging task in math — four posts to fill five categories, unless two categories double up as one. Such reservations profess only two kinds of statements, both of which are odious: a) that corruption and anti-corruption must also follow the quota system, and members outside the reserved category cannot be expected to be fair and impartial in deciding upon the total canvas of corruption; and b) that representatives of the reserved categories must be present to protect corruption of their principals, following the quota system. I think it's time we realised that both corruption and anti-corruption work have no barriers of caste, sex or religion. And if the emphasis is on strict implementation of the reserved quota among Lokpal members, then a mechanism must be devised to ensure that they are all of the required standards of efficiency, integrity, calibre and impartiality. Arbitrary selection of members, based only on reservation, and not on calibre can be counter-productive and lead to asymmetry in the overall performance of Lokpal.
As per Section 4(1), the chairperson and members of Lokpal shall be appointed by the President according to the recommendations of the Selection Committee consisting of (a) the Prime Minister, (b) the Speaker of the House of People; (c) Leader of the Opposition in the House of the People; (d) the Chief Justice of India or a Judge of the Supreme Court nominated by him; and (e) one Eminent Jurist. This provision has been criticised but the criticism is a bit of an over-boundary. The Chief Justice is expected by reason of his credentials and reputation not to be subservient to the Prime Minister or the executive. As for selection of the "eminent jurist", the Prime Minister has made his predilections quite clear. A properly selected jurist too will be a controlling factor to prevent the disaster of the Lokpal turning out to be a rubber stamp of the party in power.
Subsection (2) of Section (4), states that no appointment of a chairperson or a member of Lokpal shall be invalid merely by reason of any vacancy in the Selection Committee. This does sound a little odd, and one cannot figure out its real intent. There can hardly be a situation in which the posts of Prime Minister, Lok Sabha Speaker, Leader of Opposition in Lok Sabha or the Chief Justice of India are vacant. Even for the future, Section 5 clearly states that the selection process must start three months before the expiry of the term of the Chairperson or a Member of Lokpal. Three months is a perfectly reasonable period to ensure that there is no vacancy in the Selection Committee. The only vacancy that seems logically possible is that of the "eminent jurist", who seems to be becoming more and more portentous as the scheme behind the Lokpal selection committee unfolds. His appointment or vacancy is the lever in the hands of the government to manipulate a majority on the side of the executive, particularly in the event of a dissenting judicial member, the Prime Minister and Lok Sabha Speaker anyway being on the same side. This is a mischievous sub-section with potential for manipulation by the party in power, and should have been avoided.
Now coming to the processes, Section 14 Subsection (1) (a), states that an allegation of corruption made in complaint in respect of any person who is or has been a Prime Minister can be enquired into by the Lokpal except in those matters which relate to international relations, external and internal security, public order, atomic energy and space. The restriction imposed on matters like international relations, external and internal security and public order is understandable.
But why should there be a prohibition on the Lokpal to enquire into matters that relate to corruption in the departments of Atomic Energy or Space (that always come directly under the Prime Minister), such as, the Antrix Devas scam, and now its arbitration proceedings? This is against the concept of transparency, so famously touted by the Congress Party, and Rahul Gandhi its presumptive future Prime Minister.
The procedure prescribed in respect of preliminary inquiry and investigation under Section 20 is self-contradictory. After receiving a complaint, the Lokpal may order (a) preliminary enquiry to ascertain whether there exists a prima facie case; or (b) investigation by any agency where there exists a prima facie case. But the proviso in the same section stipulates that before ordering an investigation under Clause (b), the Lokpal shall call for the explanation of the public servant so as to determine whether there exists a prima facie case for investigation. Thus seeking the explanation of the public servant is mandatory before ordering investigation of Lokpal. The last proviso in the same section to the effect "that the seeking of explanation from the public servant before an investigation shall not interfere, with the search and seizure, if any, required to be undertaken by any agency" is meaningless because unless the Lokpal authorises the investigation by such agency, the agency does not get powers under the law to search and seize, and unless the Lokpal seeks an explanation from the public servant he cannot order investigation. There is a clear chicken and egg contradiction in this regard.
Has this contradiction been included deliberately to confound the implementation of the Act, or is it plain and simple carelessness or ignorance of law?
If the former, then the implications are sinister and serious. And if the latter, then the nation can see for itself the levels of incompetence and negligence that the government has descended to, even when placing a legislation as crucial as this before Parliament.