Points Of Friction
Government and civil society representatives have sparred on the question of including the prime minister in the proposed Lokpal Bill on seven key grounds:
- Point: The Prime Minister is accountable only to Parliament, and to the people of India
Counterpoint: Does this mean a PM can never face action for criminal liability,
however serious the charge, especially given the experience of two former PMs?
- Bringing PM under Lokpal will invite a flood of frivolous charges that will erode his moral authority to govern
Only President enjoys blanket immunity; complaints against PM will be vetted by a full bench of the multi-member Lokpal before being processed
- The PM's functioning will be hobbled if the Lokpal watches his every move
The Lokpal will only sit in judgement over his non-executive actions. The PM will otherwise be free to run his government and make decisions.
- The image of the country will be affected if the PM is constantly investigated for corruption
The fact that all are equal in the eyes of the law and that even the PM can be subjected to criminal investigation will enhance nation's stature
- If a Lokpal becomes all-powerful, it will create a constitutional crisis; there has to be separation of powers
In theory, the CBI or income-tax department can start an investigation against the PM. But how fair is the probe likely to be, when those departments come under the PM
- There's no provision for President's rule at the Centre. If a PM is forced to step down, the government will be headless.
It is the President's job, as mandated by the Constitution, to ensure that the government runs smoothly. If the PM has to quit, it is the President's task to find a replacement.
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On May 30, as the joint drafting committee of the Lokpal Bill met for the fifth time in the conference room of the ministry of finance in North Block, trouble was already brewing. In the last four meetings, the contentious issues had been put on the backburner and the government's representatives, led by the formidable Pranab Mukherjee, had discussed the broad principles of the proposed legislation. However, this time, within minutes, the finance minister dropped a bombshell. The prime minister, he said, would not be placed under the ambit of the proposed bill. An agitated Shanti Bhushan, the co-chairperson of the drafting panel, immediately raised a query: "Are you saying that the PM is immune to corruption?"
While Bhushan did not get an answer, things went only downhill from here on. So far, the meetings had been cordial and very little of substance had been discussed except for a broad agreement on some of the less disputed aspects. On May 30, however, as the non-government members trooped into the room, they'd insisted that the key issues be discussed first.
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Who can investigate the PM if he is suspected of being corrupt? What if this "blanket immunity" ensures that all acts of corruption will be routed through him and will not be investigated? What if the PM kept all major portfolios with him when his immunity would provide protection to all acts of corruption in the ministries that he handles?
On their part, the government's nominees pointed out that if the PM was included in the bill, then it would completely hobble him and severely erode his authority to lead the executive. "What if there are numerous frivolous complaints against the PM sponsored by opposition parties? Would that be desirable for the smooth functioning of the government," Union human resources development minister Kapil Sibal countered. The PM, it was also pointed out, was chosen by a democratic process that also ensured his integrity. His accountability therefore should be solely to the people or Parliament.
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A day later, the government resumed its efforts to keep the PM out of the Lokpal's ambit, but broadened its strategy. Sibal and P. Chidambaram hurriedly called a press conference to try and mitigate the PR damage. They also began a more subtle strategy to try and exploit the divisions among the civil society members on the committee. Simultaneously, a strategy was carefully worked out to highlight yoga guru Baba Ramdev's support for the PM and judiciary's exclusion. They also worked on a few legal luminaries to hold seminars pointing out the "lacunae" in the provisions suggested by the non-government members and use these pronouncements to erode their position. But what the government lacked then and continues to lack now are sound legal arguments to support such an immunity. Both Chidambaram and Sibal declined to be interviewed for this story.
But here were some key questions that clearly warrant the PM's inclusion in the Lokpal Bill. Can the CBI, which is directly under him, be the right agency to investigate any serious complaint? If it isn't, then who can investigate a charge of corruption against the PM? Interestingly, the Constitution provides no blanket immunity to the PM. Wouldn't his exclusion from such a bill create a backdoor amendment of the Constitution for all practical purposes? Legal experts argue that if everyone is equal before the law, then why should the PM be given special status?
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Former chief justice of the Delhi High Court, A.P. Shah, also feels that the PM must come under the purview of the Lokpal, with adequate safeguards. "It is strange," he says, "that while the government's draft covered the PM, he is now sought to be excluded. Some ministries come directly under the PM. Others, because of national security, are sought to be kept out. The real danger lies in his seeking to avoid inquiry by the Lokpal because of the control he wields."
Indira Gandhi, Narasimha Rao PMs whose actions were called to question
But Shah believes "the power to sanction investigations against the PM should be given to the Lokpal by the President (who is the head of the government). After the investigations, and on the basis of evidence collected, the Lokpal's report should be placed before Parliament".
Shah's position is well appreciated by Nikhil Dey, a member of the National Campaign for the People's Right to Information and a champion of grassroots activism. But while the NCPRI has generally stated it wants the PM under Lokpal, Nikhil nuances his personal position, saying he does not want a PM hobbled by frivolous allegations. "I think this needs some amount of thought before we come to a conclusion. If a PM is directly in charge of a ministry, then he must be accountable to the Lokpal. At the same time, he can't be subjected to an inquiry just because as chief executive he has the vicarious responsibility of the whole cabinet. I certainly don't want a lame-duck PM but I don't want a completely unaccountable PM either." However, there are others like former chief justice of India J.S. Verma and senior government officials in the PMO who feel that the prime minister must be kept out (see box).
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In 1998, when the Central Vigilance Commission was given statutory status by the A.B. Vajpayee-led NDA government, it too had envisaged bringing the PM under the Lokpal's scrutiny. While the present leader of the opposition in the Lok Sabha and BJP leader Sushma Swaraj pointed this out on social networking website Twitter a few days ago, her party colleague Arun Jaitley was more measured in his argument on the issue. "Look, Parliament is supreme. Usually civil society feeds Parliament on policy issues. Here this logic has been turned on its head and we are being asked for our opinions to feed civil society." Jaitley's parliamentary colleague and senior CPI(M) leader Sitaram Yechury believes that "the institution of Lokpal should be established covering the prime minister and the PMO".
Meanwhile, the non-government members of the committee have held extensive public consultations. But the government nominees have neither proposed nor carried out any such exercise. So far, they have been guarded in their public announcements and opaque on the deliberations on the Lokpal Bill. Whether the new legislation will strengthen democracy or weaken it is too early to say. There is one school of thought that feels it may create an all-powerful monster which will have sweeping powers over the judiciary, the investigating agencies and the executive in violation of "the separation of powers" principle enshrined in the Constitution. On the brighter side, though, it could also turn out to be a major step forward in the fight against corruption.
ALSO IN THIS STORY |
OPINION POLL Ordinary Indians cry out loud: 61% want PM under the Lokpal while 60% want SC judges and MPs covered |
LOKPAL BILL There are a few who think including the PM under Lokpal would lead to chaos |
JUDICIARY, MPS A caveat: Is the Lokpal the right authority to investigate judges? Legal luminaries think otherwise. |
RAMDEV'S RALLY What's behind the Congress's sly contortions for Ramdev? |
AUTHORS: SAIKAT DATTA
PEOPLE: ANNA HAZARE
TAGS: LOKAYUKTA & LOKPAL | CORRUPTION | GOVERNMENT-GOVERNANCE-GOVERNMENT POLICIES ETC| PRIME MINISTER OF INDIA | JUDICIARY | SUPREME COURT | MEMBERS OF PARLIAMENT | UPA
SECTION: NATIONAL
SUBSECTION: COVER STORIES
JUN 07, 2011 05:17 PM 11 | To whom the Lokpal will be accounatable to? The political parties has to come to us in every years and we can decide their future. How we can get rid of a Lokpal if it gets corrupt? Or are we assuming that Lokpal will be above the law? How we decide who will be the Lokpal? I am really scared of this building extra-constitutional power center, it seems we are going towords authoritarian society. |
JUN 06, 2011 09:35 PM 10 | OK.But lokpal too is constituted by falliable human beings.Who then would oversee the Lokpal!The media is trying to project that the Lokpal is supreme and sacrosanct.Ignorance of the people is feeding on this.Opposition parties knows this but would not object till they come in to power. People who are supposed to punish corrupt politicians have only consistently voted for them for reasons best known to them.That has only embodened these corrupt practices.All democracies have faults and it need to be constantly improvised.There is no absolute and no panacea either. Lokpal is one more effort and it will need to be constantly improvised as in the case of right to information act.After all we are human beings and falliable.Empowering Lokpal will only lead to another power structure that will misuse the power.Let parliament be supreme and to be effective let us all elect uncorrupt politicians first. |
JUN 06, 2011 10:14 AM 9 | The PM has no accountability for all the scams done by ministers in his government. he does not have a choice in the cabinet creation. he cannot make any policy or political decisions without approval from remote controls. He cannot rein in allies. This is a PM with no real power. Hence he would also not be able to indulge in corruption without approval from remote control. Maybe that is why congress feels the PM should be out of Lokpal. ONly when PM has real power, any actions/motives can be attributed to him. since he currently is only dummy, there is no need to include him in Lokpal. may be this question can be looked at when we get the next PM. |
JUN 05, 2011 07:55 PM 8 | The Congress is thinking ahead - Baba Rahul is all padded up to become the PM and Mama Sonia wants to gift him all the perks of a PM (countless foreign jaunts etc) and also what she enjoys now - all power and no responsibility or accountability. |
JUN 05, 2011 06:58 PM 7 | lokpal will be next bofors for congress. corruption sealed the fate dmk in tamil nadu. honesty has payed for naveen patnaik and nitish kumar. only saving grace the churning which is taking place in indian society may bring some good to society. |