Lokpal could create more problems than it will solve

Retired SC judges becoming part of an anticorruption body means stepping into the domain of the executive

The Lokpal bill has generated much hype and hope in recent times. It is being seen as a big tool in eliminating corruption. But it will do no such thing. The Lokpal’s jurisdiction is restricted to cases of disproportionate assets amassed by public figures. The Act is redundant as the Prevention of Corruption Act is adequate to serve the same purpose. Lokpal does not cover day-to-day corruption.

The provision in the Lokpal Act fixing the age of retirement at 70 has the potential for misuse. It could prove to be too tempting a prize for some retiring members of the higher judiciary to resist, as the appointment of the Lokpal will be in the hands of the executive.

The Lokpal will be some kind of a super cop, a member of the executive. He will be selected by a committee comprising, inter alia, the Chief Justice of India. It will be essentially an administrative committee, a part of the executive.

In other words, members of the higher judiciary are being proposed for executive duties. This will be a violation of the ‘basic structure’ of the Constitution.

‘Separation of powers’ is one of the most important among the features of the ‘basic structure’. Just as the executive cannot encroach on the judicial domain, similarly the judiciary should not be inducted into executive functioning.

Article 50 of the Directive Principles of State Policy casts a moral responsibility on the State to separate the judiciary from the executive.

If judges of the Supreme Court were to be members of administrative committees, a very anomalous situation may arise. Suppose a candidate for the post of Lokpal were to be rejected by the selection committee. He can always exercise his fundamental right to move the High Court under its writ jurisdiction to challenge the committee’s functioning as biased and motivated. Will the High Court summon Supreme Court judges or pass orders on their functioning?

The Lokpal will be basically an investigation agency, a super CBI. It will have benches comprising Supreme and High Court judges who will superintend investigation by the Lokpal police. The investigation will continue to be done under the Criminal Procedure Code 1860, the oldest law in the statute book. Under the Code, the judiciary has absolutely no role as investigation is the exclusive prerogative of the executive.

The investigation report will be submitted in the court of a special judge who will be a member of the subordinate judiciary. If investigation were to be monitored by Supreme Court and High Court judges, the accused may be hard pressed to get justice before a subordinate judge.

It will be a travesty of criminal justice. It is settled law that the judiciary has no role in the investigation of offences. Under the Code, the High Court can pass any order in the “interest of justice”. But the Supreme Court itself has ruled that one exception is non-interference during investigation.

The Lokpal, during the course of investigation, can ask for the suspension of any class 1 officer. And the government shall normally comply. In case the government differs, it shall explain the reasons for it. This is a very anomalous provision, as the appointing authority is the disciplinary authority in law.

And the appointing authority of class 1 officers is the President of India. The provision implies that the President shall have to justify his action before the super cop! The Lokpal has been granted unlimited discretion to delegate his powers, which include raids, search and seizure to any “officer or employee”.

Such a provision is in violation of administrative law whereby a power delegated cannot be sub-delegated. He will be authorised to attach “proceeds of corruption”, an expression which is vague and undefined. It is bad in law to empower an executive authority to do so, which is the lawful function of an independent court of law, after examining all evidence. The whole Lokpal issue warrants a serious rethink.

THE LOKPAL, DURING THE COURSE OF INVESTIGATION, CAN ASK FOR THE SUSPENSION OF ANY CLASS 1 OFFICER. AND THE GOVERNMENT SHALL NORMALLY COMPLY. IN CASE THE GOVERNMENT DIFFERS, IT SHALL EXPLAIN THE REASONS FOR IT. THIS IS A VERY ANOMALOUS PROVISION, AS THE APPOINTING AUTHORITY IS THE DISCIPLINARY AUTHORITY IN LAW