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Effective Lokpal Not In Sight by Rajindar Sachar

As expected, the government and the Anna Team have disagreed on vital points. The question of inclusion of the Prime Minister within the ambit of the Lokpal is being falsely blown out of proportions by the government’s apologists. The Prime Minister, though the head of government, is only first amongst equals. In a democratic country, political vacuum does not arise as the Cabinet has a collective responsibility. Also, our past experience does not show that all our Prime Ministers have been angels. Serious credible accusations have been made against them. The regret always was that in the absence of an independent mechanism like the Lok Pal to enquire into these allegations, the ruling party was able to successfully scuttle any honest independent enquiry.

Prime Minister Manmohan Singh has publicly consented to be included within the jurisdiction as had his predecessor, Vajpayee—the supposed concern of the Ministers is puerile, being more loyalist than the king.

The stand of the Ministers for exclusion of the Prime Minister is so incongruous when it is noted that the Standing Committee on Law and Justice, headed by Congress spokesperson Jayanti Natarajan, has said that the Bill should cover the Prime Minister also.

This cynicism is increased when we find that Digvijy Singh, the self-proclaimed alter ego of Rahul Gandhi, supports the Lokpal having jurisdiction over the Prime Minister—people are legitimately hoping that Rahul Gandhi would also indicate his position on a matter which is causing such a division in the society.

The suggestion to exclude is sought to be justified by the Ministers by taking the puerile plea that the Prime Minister continues to be under the jurisdiction of the Prevention of Corruption Act. It is surprising that the Ministers are comfortable with the Prime Minister being prosecuted at the report of a junior police official but not at the instance of a high-powered body like the Lokpal. Is not the unspoken premise that under the Prevention of Corruption Act, the CBI will have to get sanction from the government —ergo, which subordinate will dare to sanction the Prime Minister’s prosecution? For heaven’s sake, do not play jokes with the people and be reminded of what John Adams, one of the founding fathers of the US Constitution, said: “The people have a right, an inalienable, indisputable, indefeasible, divine right to that most dreaded and envied kind of knowledge— I mean of the character and conduct of their Rulers.”

Another laughable justification by the Ministers is that the exemption will not be applicable after the Prime Minister has demitted office—this is like locking the stable after the horses have run away. Incidentally, even the discredited, toothless draft Lokpal Bill 2010 included the Prime Minister and Members of Parliament.

The inclusion of the higher judiciary consisting of judges of the Supreme Court under the Lokpal is undesirable. I am conscious of the shame that some in the higher judiciary has polluted the institution. I am only suggesting a separate National Judicial and Accountability Commission. Call it the Lokpal (Judicial) with the same powers as the Lokpal. This will serve the purpose and still keep the distance between the executive and judiciary as mandated by the Constitution.

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KAPIL SIBAL has rhetorically challenged anyone to give an example of “which PM in the office anywhere has been prosecuted in the world”. I am sorry at this rhetorical ignorance—possibly it is due to Kapil not being assisted by his usually competent juniors when he was appearing in courts, and now possibly he is being ill-served by his public relations officer. Otherwise he would have been told that the present Prime Minister of Italy is being prosecuted before a magistrate on charges of corruption and mafia contact and sex deviation behaviour. In France, proceedings were started against the then President Chirac for misappropriation of public money. Also in Israel, a former President has been sentenced to imprisonment for his deviant sexual behaviour by a magistrate.

The near contempt of the masses protesting at the scourge of corruption is shown by Sibal comparing Anna Hazare to the “Pied Piper of Hamlin”. Sibal cautiously did not complete the story because those who are said to have followed the Pied Piper were rats and following the piper just drowned in the sea. I need not comment on such crude and insulting comparison of the masses who are waging a struggle against corruption.

The government’s spurious claim by purporting to project Parliament as the real Sovereign is fallacious, as said by Dicey, the British Constitutional authority, who underscored: “The electorate is in fact the sovereign of England and the conduct of the legislature…. should be regulated by understandings of which object is to secure the conformity of parliament to the will of the nation.” (Emphasis supplied)

Another heresy put forth against the holding of protest meetings by the people to force the government pass a worthwhile legislation is that it is undemocratic and the only resort people have is to try to persuade the legislators to pass a particular law and if they do not agree then they should try their chance at elections. This is sheer heresy and negated by the Supreme Court (1960) in Dr Lohia’s case. Dr Lohia had been arrested for asking farmers not to pay the increase of canal water rates to the UP Government. Ordering his release, the Court said: “We cannot accept the argument of the learned Advocate General that instigation of a single individual not to pay tax or dues is a spark which may in the long run ignite a revolutionary movement destroying public order. We can only say that fundamental rights cannot be controlled on such hypothetical and imaginary considerations. It is said that in a democratic set-up there is no scope for agitational approach and that if a law is bad the only course is to get it modified by the democratic process and that any instigation to break the law is in itself a disturbance of the public order. If this argument without obvious limitations be accepted, it would destroy the right to freedom of speech which is the very foundation of the democratic way of life.”

A restrained approach by the government alone can prevent a collision with the masses who are determined to vigorously pursue their struggle for an effective Lokpal.

The author, a retired Chief Justice of the Delhi High Court, was the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims, and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1@vsnl.net/rsachar23@bol.net.in