We don’t need this extra-constitutional body

The Lokpal and Lokayuktas Act, 2013, is worse than the disease it is trying to cure: Corruption. In the Keshvananda Bharati case, the Supreme Court (SC) defined the basic structure of the Constitution — it ruled that only the Constitution was sovereign and no other State organ could violate it. All laws must conform to the Constitution and any Act that violates this will be a dead letter.

Two features of the Constitution are relevant in this discussion: ‘separation of powers’ and ‘basic norms of democracy’. The first stipulates that neither the executive nor the judiciary can encroach upon the other’s turf and the ‘basic norms’ means that all executive authorities are accountable. The lokpal, an executive authority, is not accountable to anyone. This is a violation of the norms of democratic functioning and its selection by a panel comprising, inter alia, sitting judges of the SC, is unconstitutional. The panel will be an administrative committee under the control of the executive. Even the fact that the lokpal will be a multi-member body headed by the chief justice or an SC judge is unconstitutional.

Essentially, the lokpal will be an investigating agency, which will probe complaints under the criminal code. But the code exclusively entrusts the police with such powers. The judiciary does not supervise police probes. It comes into the picture only after the investigation is finished. Once the lokpal police complete the probe, the charge-sheet will be submitted in the court of a special magistrate — a member of the subordinate judiciary. If the investigation were to be supervised by SC judges, it is unlikely the accused would get any justice in the subordinate magistrate’s court.

At present, the SC and high court judges enjoy immunity from any parliamentary scrutiny. Once the judiciary allows itself to be dragged into executive functioning, this immunity will be unavailable.

The Constitution confers concurrent writ jurisdiction on high courts (and the SC): A citizen can approach an HC if an executive authority violates her fundamental rights. The HC can summon any official to appear before it. If SC judges start acting as executive authorities, and a citizen approaches an HC, it may have to summon SC judges. That would be a constitutional anomaly. The lokpal Act says that not less than 50% members must be appointed on the basis of their caste or community. This is nothing but a caste-based quota.

If the lokpal asks the Centre to suspend an under-investigation public servant, the government will have to comply. In the case of central services and all-India services, the President is the appointing and the disciplinary authority. But this clause means the President will be bound by the directions of the lokpal.

In sum, the lokpal will be an extra-constitutional authority.