‘Many advantages in Lokpal as a constitutional body’




After the appeal by all political parties to Anna Hazare to end his fast cutting across party lines in the resolution adopted unanimously in the Lok Sabha on August 25, it was reasonable to expect that his core group of advisors would ensure that the impending danger to his health and life would be averted. Justice Santosh Hegde, a member of Anna Hazare’s team, and his many other followers also made such an appeal. A meaningful constructive debate on the status, nature and jurisdiction of the proposed Lokpal requires a conducive atmosphere. Fortunately, Anna Hazare having decided to end his fast, the debate on the contentious issues can now proceed coolly.

One such issue has emerged from Rahul Gandhi’s suggestion in the Lok Sabha that the proposed Lokpal be a constitutional body like the Election Commission or the Comptroller & Auditor General, which has the status of a Judge of Supreme Court. As it is, the contemplated draft Lokpal Bills also envisage the same status for the Lokpal, though in an ordinary legislation. Many persons have sought my view on this issue. Therefore, I consider it worthwhile to put it in public domain for consideration, as part of the democratic process.

What, if any, could be the advantages of the proposed Lokpal being a constitutional body, instead of a mere statutory authority? I would think there are many.

One obvious difference is that any change in the structure or status of a mere statutory authority can be made by a simple majority in the legislature enacting an ordinary legislation, whereas such a change in a constitutional body would require the more onerous route of a constitutional amendment adhering to the principle of federalism. No doubt, the initial creation of the Lokpal as a constitutional body would itself require a constitutional amendment, but in the current mood of the entire nation supporting the crusade against corruption demanding a ‘strong Lokpal’, the environment is conducive for this progressive step. An immediate impact of such a move will be also to satisfy the core demand of Anna Hazare and his team voiced by the entire nation of a ‘strong Lokpal’.

One of the contentious issues relates to the provision for effective Lok Ayuktas in the states. Article 253 of the Constitution does empower Parliament to enact a law for the whole or any part of the territory of India to implement an international treaty or convention: UN Convention against Corruption in this case. This provision overrides the Lists in the Seventh Schedule. A constitutional amendment to create the institution of the Lokpal akin to that of the Election Commission or the CAG will overcome that difficulty by making uniform provision for equally effective Lok Ayukta in the states.

Another relevant factor is that corruption-free governance is a basic human right, more so in a developing country. In India it is a judicially recognised enforceable right derived from guaranteed fundamental rights. The Human Development Report, 1999 on the theme of ‘Crisis of Governance in South Asia’, identified corruption as a major cause for that crisis. A ‘strong Lokpal’ to combat the malaise of corruption is a clarion call of the nation; and it is also a means to address the constitutional promise made in the directive principles of State policy as well as for eradication of poverty-the foremost Millennium Development Goal. The Durban Commitment to Effective Action against Corruption (1999) resolved: “[Corruption] deepens poverty; it debases human rights, it degrades the environment; it derails development and it destroys confidence in democracy and the legitimacy of governments. It debases human dignity.” A constitutional Lokpal, instead of a statutory Lokpal, will be more effective to achieve this objective.

Another incident of a constitutional Lokpal to combat corruption would be to make its function a basic feature of the Constitution, and, therefore, a part of its indestructible basic structure that would be beyond even the amending power under Article 368: Keshavananda Bharti, AIR 1973 SC 1461. Immunity from vagaries of changing political equations in the era of coalitions is another benefit.

Experience has shown that the constitutional bodies are comparatively more effective and immune from political and other extraneous influences than statutory bodies. The need for creation of a ‘strong Lokpal’ providing greater public confidence in its credibility is sufficient reason to prefer its constitutional status.

I may reiterate another aspect which I have been emphasizing for long. The Lokpal, in whatever form, is not a panacea for controlling corruption from all sources. A holistic view is necessary to take measures to cure as well as to prevent this evil in all its aspects. More than one measure is needed to provide complete remedy. A few illustrations would suffice.

Judicial accountability as a facet of judicial independence cannot be achieved without the effective accountability also of the lawyers, which is inadequate under the Advocates Act, 1961 giving the entire control over the conduct of lawyers only to a body of lawyers. Linkage between misconduct of some lawyer and that of the errant judge is common knowledge. Similarly, corruption of other professionals, corporates, media etc. has also to be addressed. Even the field of education is no longer sacrosanct. In short, the long term target of restoration of values as the strongest preventive measure must also be a part of the action plan.

Electoral reforms are necessary to curb the ill-effect of money and muscle power that breed corruption and criminalise politics; and reforms to prevent tax evasion contributing to increase of black money. Constitution Amendment Bill could also simultaneously introduce concurrent constitutional changes essential for a strong anti-corruption regime such as to Articles 105, 194 and 235. The impact of the JMM bribery case needs to be overcome by amending Articles 105 and 194 and codifying the privileges of the members.

Such a comprehensive programme alone can prevent as well as cure the malady; otherwise adding to the existing plethora of legislation on the subject would only be a symptomatic treatment instead of a permanent cure. There is no instant cure for a chronic disease. It requires a sober debate along the correct route.

Enlargement of the debate on the challenge at this juncture also provides the opportunity which must not be lost. Anna Hazare has provided this opportunity for an intensive search for the best method to combat rampant corruption. The churning process to find the best solution has begun. It is time for Hazare to derive satisfaction that his prime purpose is served. He should now leave it to those who are constitutionally entrusted with completing the task with the aid of all of the civil society in our inclusive democracy. I sincerely urge movement in this direction within the constitutional scheme.

The writer is a former Chief Justice of India



Lokpal bill and the Prime Minister

A cropped Manmohan Singh version of File:IBSA-...

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When the basic structure of the Constitution denies the Prime Minister immunity from prosecution, how could it be argued that the office should not be brought under the scrutiny of the Lokpal?

The Indian citizenry is up in arms against corruption at the highest levels of government. Anna Hazare‘s movement has caught the people’s imagination. The former President, A.P.J. Abdul Kalam, has pitched in and called upon the youth to start a mass movement against corruption under the banner “What can I give?” (The Hindu, June 27, 2011).

According to a CRISIL report (The Hindu, June 29, 2011), inflation has caused the Indian public to be squeezed to the extent of Rs. 2.3 lakh crores. According to the Comptroller and Auditor General of India (CAG), the estimate of loss to the exchequer owing to the 2G spectrum scam is Rs. 1.22 lakh crores. That corruption is a disease consuming the body politic is a fear expressed by dignitaries in India over many years. As far back as 1979, Justice V.R. Krishna Iyer observed in a judgment in his inimitable style: “Fearless investigation is a ‘sine qua non’ of exposure of delinquent ‘greats’ and if the investigative agencies tremble to probe or make public the felonies of high office, white-collar offenders in the peaks may be unruffled by the law. An independent investigative agency to be set in motion by any responsible citizen is a desideratum.”

Mark the words: fearless investigation by an independent investigative agency against delinquent ‘greats’. A good Lokpal bill has to be nothing less.

It is in this context that this article addresses the issue of whether the Prime Minister should be brought under the ambit of an Ombudsman (Lokpal) and be subject to its scrutiny. It is important to observe that in most of the Lokpal bills, including the 2010 government draft (except the 1985 version), the Prime Minister is within the ambit of the Lokpal.

The Constitution

Under the Indian Constitution there is no provision to give immunity to the Prime Minister, Chief Ministers or Ministers. Under Article 361, immunity from criminal proceedings is conferred on the President and the Governor (formerly the Rajpramukh) only “during his term of office.”

So what is the principle behind such immunity being given? The line is clearly drawn. Constitutional heads who do not directly exercise executive powers are given immunity as heads of state. Active politicians such as Ministers, who cannot remain aloof from the hurly-burly of electoral and party politics, ethical or unethical, honest or corrupt, are not given any immunity. They are subject to penal laws and criminal liability.

The basic structure of the Constitution clearly denies immunity to the Prime Minister.

Internal Emergency

During the period of the Internal Emergency (1975-77), Indira Gandhi enjoyed dictatorial powers. She detained without trial prominent Opposition leaders and was supported by a captive and rump Parliament.

The Constitution (Fortieth Amendment) Bill was moved in, and passed by, the Rajya Sabha in August 1975 and later it was to go before the Lok Sabha. The Bill was blacked out from the media and hence very few people knew about it. It never became law because it was not moved in the Lok Sabha.

The Bill sought to amend Article 361 by substituting sub-clause (2) thus: “(2) No criminal proceedings whatsoever, against or concerning a person who is or has been the President or the Prime Minister or the Governor of a State, shall lie in any court, or shall be instituted or continued in any court in respect of any act done by him, whether before he entered upon his office or during his term of office as President or Prime Minister or Governor of a State, as the case may be, and no process whatsoever including process for arrest or imprisonment shall issue from any court against such person in respect of any such act.”

The attempt to give life-time immunity from criminal proceedings for acts done during and even prior to assuming office, of the President, the Governor and additionally the Prime Minister, did not materialise.

Foreign jurisdictions

In Japan, Prime Minister Kakuei Tanaka (July 1972 to December 1974) was found guilty of bribery and sentenced. In Israel, Prime Minister Ehud Olmert was indicted in corruption scandals in August 2009. In Italy, Prime Minister Silvio Berlusconi enacted, through a pliant legislature, a law by which he shielded himself from prosecution. The Italian Constitutional Court recently invalidated crucial parts of that law, which may result in his trial being revived.

The following are some of the main arguments against bringing the Prime Minister under the Lokpal’s scrutiny. The first one runs thus: “The simple answer is, if the Prime Minister is covered under ordinary law (the Prevention of Corruption Act), you don’t need him covered under Lokpal.” This is a view that has been attributed to the former Chief Justice of India, J.S. Verma (Hindustan Times, June 27, 2011). Any misconduct by a Prime Minister can be investigated by the Central Bureau of Investigation: this view is that of Chief Minister Jayalalithaa (The Hindu, June 28, 2011). This objection concedes the principle that the Prime Minister is not immune from criminal liability and can be investigated, but argues and assumes that the Prevention of Corruption Act and the CBI present effective existing alternative procedures. Nothing could be farther from the truth and the ground realities.

What is the ground reality? First, the CBI, the premier anti-corruption investigative agency, is under the Department of Personnel and Training, which is controlled by the Prime Minister’s Office (PMO). Secondly, the career prospects of CBI officers and other personnel are dependent on the political executive, and all officers are subject to transfer except the Director. Thus, the investigative arm is controlled by the ‘political suspects’ themselves. Thirdly, the Single Directive, a secret administrative directive that was invalidated by the Supreme Court in the Jain hawala case in 1997 (Vineet Narain v. Union of India) has been legislatively revived. Consequently, under Section 6A of the Delhi Special Police Establishment Act, the CBI is disabled from starting an inquiry or investigation against Joint Secretary or higher level bureaucrats without the Central government’s prior approval. Therefore, the Prevention of Corruption Act is a non-starter against Ministers and high-level bureaucrats who may act in concert. It is imperative that the CBI’s anti-corruption wing be brought under the Lokpal and not under the PMO. This alone would meet the test of an independent and fearless investigative agency as enunciated by Justice Krishna Iyer.

Secondly, it is argued that if the Prime Minister is within its ambit, the Lokpal could be used by foreign powers to destabilise the government. Today, the checks on the executive government are the higher judiciary, which has actively intervened in the 2G spectrum scam and other scams; the CAG, whose reports against the functioning of the telecommunications sector triggered investigations into scams; the Election Commission headed by the Chief Election Commissioner, which conducted elections in West Bengal in the most efficient and orderly fashion. All these authorities could be undermined by a foreign power. Why should the Lokpal alone be the target of a foreign power? Why not the intelligence and defence services? Why not leaks from Cabinet Ministers and their offices — bugged or not?

Thirdly, it is argued that bringing the Prime Minister under the Lokpal’s scrutiny would mean a parallel government being put in place. This objection is disingenuous. Do the Supreme Court and the higher judiciary constitute a parallel government? Is the CAG a parallel government? Is the CEC a parallel government? Is the CBI a parallel government? The answer is clear. These constitute checks and restraints on the political executive and the administration so that public funds are not misappropriated and constitutional democracy and citizen rights are not subverted. The Lokpal will be under the Constitution and subject to judicial review, and it is imperative that the anti-corruption wing of the CBI be brought under the Lokpal. There is no question of any parallel government. The Lokpal will be only a check on the corrupt activities of the Executive. If all checks and balances are to be regarded as the marks of a parallel government and therefore abolished, it will be a recipe for dictatorship.

William Shakespeare wrote: “There is a tide in the affairs of men, which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life is bound in shallows and in miseries.” There is a tide in the affairs of this country and there is a great opportunity to promote good governance through a powerful and independent Ombudsman. India’s economic reforms, for which the Prime Minister deserves approbation, should not be derailed at the altar of scams and corruption. Will his leadership ride on the tide of fortune and take the country forward to greater heights?

(Anil Divan is a Senior Advocate, and president of the Bar Association of India. E-mail: abdsad@airtelmail.in)


Justice V.R. Krishna Iyer, former Judge of the Supreme Court, writes in the context of the article by Anil Divan headlined ‘Lokpal bill and the Prime Minister,’ published on July 1:

Lord Acton, the great British jurist, rightly said: “Power tends to corrupt and absolute power corrupts absolutely.” The Prime Minister is the custodian of the considerable state power. He has to be under public scrutiny.

Therefore I have clearly expressed the view that if power is to be subject to public investigation and scrutiny, he has to be within the ambit of the Lokpal Bill and cannot be exempted from it. Likewise, our judiciary is the watchdog of the Executive. People look up to the judges to ensure that the Executive does not misbehave. The judiciary must be accessible to every citizen who has a grievance against the robed brethren. When Parliament resorts to misconduct and violates the Constitution, people appeal to the judges for a remedy. In this view, the judges are sublime and must have control over the Executive and the parliamentary process. Both these instruments are under the Lokpal’s proposed jurisdiction. There is no case of exemption of these authorities. I am sorry that some high Chief Justices have expressed a different view. I disagree. The greatest menace before India today is that the judiciary itself is corrupt and no action is being taken. There must be a militant, active nationwide movement against corruption. A powerful instrument must be set up for this if the confidence of the people is to be preserved.

The judiciary and the Prime Minister shall be under the Lokpal. The Lokpal itself must be of the highest order and should be plural in number. The Prime Minister and the judiciary shall be like Caesar’s wife: above suspicion.

Can Lokpal be investigator, prosecutor, jury and judge?


Just 70 days ago, the UPA government succumbed to the pressure exerted by Team Anna, which posed as civil society being supported by advocates and actors, ex-babus, bloggers and twitteratti, swamis and social activists. The high decibel show at Jantar Mantar numbed the government’s political and constitutional thinking. Foxed by the red herring of Team Anna’s popularity, the Manmohan Singh government quickly agreed for a joint committee to draft the Lokpal Bill only to realise that the taste of the pudding is in its eating. Public placating of Team Anna was easy, but translating their exasperating demands into a bill was legally excruciating.

Though the Congress has now stressed that the government will not succumb to Team Anna’s pressures, the draft prepared by both sides, despite their inherent disagreements, has one thing in common. Representatives of both Team Anna and government have perceived more or less a Lokpal who will investigate, prosecute and then change cloaks to stand as jury and judge. This all-rolled-into-one power centre is abhorrent to any democratic system of governance, which gets its legitimacy from a fair system of justice delivery.

Why did the government first succumb to Team Anna, then criticise it and now question its representatives’ character? Does it reflect the vacillating mindset of the two power centres — the PM and the Congress president? Why did ministers rush to discuss with Team Anna on the one hand while on the other, a senior party leader publicly criticised the move? He also went around saying it was time for a young PM?

Manmohan Singh will celebrate his 80th birthday on September 26 next year. Rahul Gandhi will turn 42 in June 2012. Singh has not contested a Lok Sabha election, a victory in which transforms a candidate into a people’s representative. Rahul has won twice from Amethi. It is difficult to judge Singh’s feelings on the vacate-the-chair talk from within Congress circles when he is perceived to be engaged in finding solutions to the most trying situations, both political and social. But what must be worrying the PM and the entire political class is the confrontational build up between the representatives of people and the ‘civil society’ to garner space in the legislative arena in the name of participatory democracy.

Can self-proclaimed representatives of civil society be recognised as harbingers of new legislative framework when the Constitution recognises only the Parliament and Assemblies as law-makers? In the early 1970s, the famous Keshavananda Bharati case was argued before a 11-judge bench of the Supreme Court on Parliament’s power to amend the Constitution. The Indira Gandhi government had argued that a political party enjoying two-thirds support in both Houses of Parliament could delete all provisions.

The bench’s shock and dismay forced the government to mould its arguments, “Though legally, there is no limitation to the amending power, there are bound to be political compulsions which make it impermissible for Parliament to exercise its amending power in a manner unacceptable to the people at large.” The apex court in Keshavananda case [1973 (4) SCC 225] said, “The strength of political reaction is uncertain. It depends upon various factors such as political consciousness of people, their level of education, strength of political organisation in the country, the manner in which mass media is used and finally, the capacity of the government to suppress agitation.

“Hence, people’s will to resist an unwanted amendment cannot be taken into consideration in interpreting the ambit of the amending power. Extra-legal forces work in a different plane.” The SC refused to accept the argument saying it was difficult to fathom the depth and weight of people’s wish when it came to change in law. In the present context, people are exasperated by the level of corruption, but is it their wish to have a all-in-one Lokpal? Are extra-legal forces true reflectors of the people’s wish and will?