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Scared of the spark by Rajinder Sachar

As expected, the government and the team led by Anna Hazare have disagreed on vital points. The question of including the prime minister within the ambit of the lokpal is being falsely blown out of proportion by government apologists.   
    
Though the head of the government, the prime minister is only the first among equals. In a democracy, a political vacuum does not arise if the PM finds himself under the lokpal’s gaze as the Cabinet has a collective responsibility. Also our past experience does not show that all our PMs have been angels. The regret always was that in the absence of an independent mechanism like the lokpal to inquire into these allegations, the ruling party was able to successfully scuttle any honest independent inquiry.

Manmohan Singh has reportedly consented to be included within the jurisdiction, as had his predecessor Atal Bihari Vajpayee. The supposed concern of the ministers is puerile, it being a case of being more loyal than the king. The reason cited by the ministers for excluding the PM from the lokpal’s purview is so incongruous when it is noted that the standing committee on law and justice headed by Congress spokesperson Jayanthi Natarajan has said that the bill should cover the prime minister also. Our cynicism is increased when we find that Congress general secretary Digvijaya Singh also supports the PM’s inclusion.

The ministers argue that the exclusion is justified as the prime minister continues to be under the jurisdiction of the Prevention of Corruption Act. It’s a matter of surprise that the ministers are comfortable about the PM being prosecuted at the behest of a report of a junior police official but not at the instance of a high-powered body such as the lokpal. Could this be based on the unspoken premise that under the Prevention of Corruption Act, the Central Bureau of Investigation (CBI) will have to get sanction from the government itself? I certainly don’t know which subordinate will dare to sanction the PM’s prosecution.

Another laughable justification provided by the ministers is that the exemption won’t be applicable after the PM has remitted office. This would be tantamount to locking the stable door after the horse has bolted. Incidentally, even the discredited and toothless draft Lokpal Bill 2010, included the PM and members of Parliament in the lokpal’s purview.

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

The rhetorical bluster of Kapil Sibal — to give an example: “Which PM in office anywhere has been prosecuted in the world?” — is possibly due to Sibal not being ably assisted by his public relations officer. Otherwise, he would have certainly been told about the present Italian prime minister, Silvio Berlusconi, being prosecuted before a magistrate on charges of corruption. Earlier, proceedings were started in France against the then president, Jacques Chirac, for misappropriation of public money.

The near contempt of the people protesting against corruption was shown by Sibal when he compared Hazare “to the Pied Piper of Hamelin”. Interestingly, Sibal did not continue the metaphor as those in the story who followed the Pied Piper were rats and children who were led to drown in the sea. So much for the aam admi being the repository of the nation’s hopes.

The charge against holding protest meetings to force the government to pass a worthwhile legislation has been that the agitation has been undemocratic. According to this theory, all that people have to do is to try and persuade legislators to pass a particular law; if they don’t succeed, they should try their luck by standing for elections themselves. As a reminder let me simply point to the rejection of this idea by the Supreme Court in 1960 in the case against Ram Manohar Lohia, who had been arrested for asking farmers not to pay the increased rates for canal water to the Uttar Pradesh government.

Ordering the Lohia’s release, the court had 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 [an] 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 democratic way of life.”

(Rajinder Sachar is a civil rights activist and the former Chief Justice of Delhi )

The views expressed by the author are personal