Editorial The PM should be outside the Jan Lokpal Bill

The report on the Lokpal Bill has been tabled before the Parliament today. Bar & Bench editorial team has tried to analyse various arguments on one of the most contentious issue in Lokpal Bill whether the Prime Minister should be covered by Lokpal or not. The team has argued both for and against. The analysis and arguments are set out below..FOR:.First Among Equals: Why the Prime Minister should be outside the Jan Lokpal Bill.Imagine this: a popular politician is elected to what is effectively the highest office in the land. He draws up an ambitious program of comprehensive reform. Although many reforms are controversial, he enjoys broad political support and a majority in Parliament. Politically speaking, it should be safe for him to move ahead with his plans, right?.Not quite. If you didn’t like his plans, you could still trip him up. You could accuse him of corruption, you could allege various illegalities, perhaps you could even suggest that he had had exchanged favors for an extra-marital affair. As anyone who has been in court knows, initiating the criminal or even civil litigation process by itself can be harassment enough..More importantly, who really is clean enough to avoid all scrutiny? Which of us hasn’t violated some law, however trivial, at some point in our lives? In his famous dissent in Morrison v. Olson (487 U.S. 654), a case dealing with the powers of an independent counsel to investigate high executive officials, Justice Scalia famously noted that:.“Only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation…How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile — with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it.”.And actually, you don’t really have to imagine this situation. In the U.S., many Democrats felt that this is precisely what happened with President Clinton. In their view, Republicans, unable to defeat the President politically, sought to block him at every turn with investigations, threats of prosecution and allegations, both unfounded and otherwise. And even though, ultimately the President admitted to an affair with Monica Lewinsky, many would argue that this was a purely personal matter which had no relevance to his official conduct..The American experience provides a strong reason for keeping the Indian Prime Minister out of the purview of the Jan Lokpal. This doesn’t mean that the Prime Minister is rendered unaccountable. First, as the Government’s draft of the Bill recognizes, the Prime Minister could still be prosecuted after he leaves office. Second, during his term in office, the Prime Minister remains accountable within the Westminster system – i.e., to Parliament. If the matter is so grave, a Prime Minister may be removed politically through a no-confidence motion, after which an investigation be commenced..Consider the consequences of including the Prime Minister within the purview of the Lokpal. A Prime Minister who is under extensive investigation or who is being proceeded against by the Lokpal may well decide to cling on to power. In doing so, his ability to lead the Cabinet is hampered and the nation is left rudderless. Unlike Article 356 for the states, the Constitution makes no provision to impose President’s rule in the Union. Instead the Constitution envisages a Union governed by a Council of Ministers led by the Prime Minister..The most significant damage caused by bringing the Prime Minister under the Lokpal’s purview, however, will not be to any particular person or political party – it will be to our system of governance and the separation of powers. The creation of an extra-Parliamentary authority, which is neither judicial nor quite executive but which has power over both, is simply taking our extensive system of check and balances and subjecting it to a higher authority – itself unchecked and unbalanced. Submission to a supreme authority may be a good principle for religion but it makes for bad governance..AGAINST:.Citizen Prime Minister: Bringing the PM within the Jan Lokpal Bill.The Prime Minister of India is the head of the Council of Ministers. He is the de jure Chairman of the Planning Commission of India. He is usually in charge of the Departments of Atomic Energy and Space. He is a member of Parliament. Most importantly, however, by virtue of Article 84 of the Constitution, the Prime Minister is a citizen of India who, in his oath of office, solemnly swears to act in accordance with the Constitution and the law..The effect of taking an incumbent Prime Minister out of the Lokpal’s purview is to effectively release him from his oath while he is in office. The idea that it is sufficient to allow the Prime Minister to be investigated only after he vacates his office is rife with difficulties. A Lokpal who has to wait five or ten years before he can even begin the process of investigation will face massive difficulties in amassing evidence, assembling witnesses, marshaling a credible record and simply assessing the facts..Further, to suggest that the political process is sufficient to hold the Prime Minister accountable is to simply ignore both the theory and reality of our political process. In theory, a Prime Minister with a clear political majority would be very difficult to remove by a no-confidence vote, even if he sold off the Red Fort for personal gain. As a matter of reality, as coalition politics has shown, Parliamentary votes are determined by political compromise, negotiation and simple horse-trading rather than questions of guilt or innocence. To suggest that Parliament is a sufficient check is simply not enough..Much has also been made out of the fact that the proposed Lokpal would amount to a violation of the separation of powers. Again, this ignores the reality of our more nuanced and complicated administrative experience. There are many mechanisms of governance that do not clearly inhabit only the judicial or executive branch. One clear example of a perfectly constitutional mechanism which does not clearly fall within a single branch of government are administrative tribunals. As our Supreme Court recognized in L. Chandrakumar v. Union of India (AIR 1997 SC 1125), the separation of powers in India is not a rigid one..In this regard, it is also important to note what the Lokpal can and can’t do. The Lokpal is not investigator, prosecutor and judge all rolled into one. With respect to politicians, the Lokpal’s powers are limited to investigating complaints and then initiating cases in court. In other words, the courts still retain their power to ultimately decide questions of guilt and innocence. Most importantly, the court retains its power to decide which complaints are frivolous and which merit serious attention. This is hardly an example of an unchecked and unbalanced power..The institution of the Lokpal meets a vital need. It supplements the lacuna created by the Central Vigilance Commission, a body with a small staff strength which is supposed to check corruption in more than 1500 central government departments and ministries. Most importantly, however, the Central Vigilance Commission has authority over bureaucrats, not politicians. The Central Bureau of Investigation, on the other hand, has a larger staff and greater resources and (theoretically) has jurisdiction over politicians. The CBI, however, is under the control of the Central Government and has habitually been crippled by charges of political influence and interference. It is precisely this gap that the Lokpal can fill – that of a body that has both the ability and the political will to root out corruption at the highest levels..Finally, we need to squarely confront the charges of possible harassment and the hampering of the Prime Minister in the performance of his duties. First, as any lawyer would point out, the possibility of abuse is not sufficient grounds to rule a law unconstitutional. Second, the allegation that the litigation process is a form of harassment is a good reason to streamline and clear up the litigation process, not a reason to shield the Prime Minister from greater transparency..To quote a man who was once both a lawyer and a Prime Minister. Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially.