Bill not diluted'

Mohan Gopal: Article252 is not applicable in the present context.-BY SPECIAL ARRANGEMENT

Interview with Prof. Mohan Gopal, director, Rajiv Gandhi Institute for Contemporary Studies, New Delhi.

PROFESSOR Mohan Gopal, director of the Rajiv Gandhi Institute for Contemporary Studies (RGICS), New Delhi, is a strong proponent of the government's Lokpal Bill. The RGICS provided key inputs to the making of the government's Lokpal Bill and the Constitution Amendment Bill. Prof. Mohan Gopal, a scholar in constitutional law, headed the National Judicial Academy, Bhopal, for five years and the National Law School, Bangalore. He was appointed by Parliament as the distinguished jurist member of the inquiry committee on the corruption allegations against Justice P.D. Dinakaran. Excerpts from an interview he gave Frontline:

The Lokpal Bill as passed by the Lok Sabha has diluted some of the strong provisions of the original Bill that the government introduced in August. Is such a dilution justified?

The December 2011 government Bill is not a diluted version. There was a provision in the first Bill requiring that the trial court shall complete the trial within one year, which may be extended to two years for reasons given in writing. This provision would have been in conflict with clear Supreme Court rulings that no time limit can be imposed on a trial. By dropping such a requirement, the Bill has been strengthened against judicial challenge. Speedy completion of trials will come through good case management.

Was the government justified in invoking Article 253 to enact the Bill? Is Article 252 not better suited to secure the object of the legislation?

India is a signatory to the United Nations Convention on Corruption. It is clear that Parliament has not only the right but also the duty to enact legislation in fulfilment of India's obligations under Article 6 and other provisions of the U.N. Convention.

In the hawala [or Vineet Narain] case, the Supreme Court held that the right to corruption-free governance is a fundamental right. Every citizen, regardless of the State in which he or she may live, is therefore entitled to have an equally effective machinery to protect this right an independent Lokayukta. The availability of a Lokayukta mechanism cannot be left to individual States. A consistent minimum standard must be established across the country for the protection of this fundamental right.

Article 252 is not applicable in the present context. It is not for Parliament or the Central government to propose or initiate Central legislation under Article 252. Any such proposal must come from two or more State legislatures. No State legislature had come forward to Parliament with an Article 252 proposal.

In my personal view, the issue could have been handled somewhat differently by the government from a tactical point of view. This can be considered going forward.

The Lok Pal Constitution Amendment Bill should be first introduced and passed. The issue of State List/Union List (and hence Articles 252 and 253) does not apply to a constitutional amendment. The lists are relevant only when Parliament enacts legislation, not when Parliament exercises its amending power. Parliament will then be acting directly under the authority of the new constitutional provision on the Lokpal. If, however, a two-thirds majority cannot be mustered for the Constitution amendment with such a provision empowering Parliament to enact law on the Lokayukta, the constitutional amendment may simply require that there shall be a Lokayukta in each State under the superintendence and control of which cases against corruption would be investigated and prosecuted in each State, and leave it to the State legislatures to enact laws on the functions, powers and institutional aspects of the Lokayukta.

Such laws would need to comply with key principles/minimum standards that should be laid down in brief in the constitutional amendment. Existing Lokayukta laws would only need to be upgraded as needed to meet these minimum standards.

Is the government's control over both the appointment and removal of the Lokpal justified?

The December Bill drops the proposal of the August Bill to have a Minister as a member in the selection committee. It thus reduces government control. The government would not have control over the selection panel under the law as it would have only one representative the Prime Minister. It is not right to suggest that the Speaker is under the control of the government if this were the case, the office of the Speaker would be greatly lowered. Nor is it right to suggest that the jurist would be under the control of the government. A government-controlled jurist is an oxymoron.

There is a strong argument against the Bill's seeming tendency to disturb the federal equation by legislating on the State's power to take disciplinary action against its employees.

I agree that the issue of disciplinary action should be kept out of the Lokpal mechanism, which should concentrate on the investigation and prosecution of the crime of corruption.

The debate in Parliament shows that many members are concerned with the government's interference in the CBI. Is Section 25 of the Bill sufficient to ensure that such interference does not take place?

The independence of the investigator receives explicit statutory recognition in Section 25 of the December draft of the Lokpal Bill. It may be advisable to also include in Section 25 an explicit recognition of the well-established principle of law on the independence of the investigation from the government.

The Supreme Court clearly distinguishes in this regard [in the hawala case] between interference in the investigation of cases on the one hand [which it prohibits] and government administrative and financial control over the investigator on the other [which it does not object to and considers legitimate].

The government Bill is fully consistent with the dicta that what is to be protected as independent is the investigation process. This does not mean the government is not obliged to fulfil its constitutional and legal duties and administrative and financial responsibilities with respect to investigative agencies and their officers.

The CBI Director is to be selected under a new independent process in which the CJI or a Supreme Court judge nominated by him would be a party. The Director would have complete independence in running the agency in accordance with the law, including assignment of staff to cases and review of the investigation.

Under both the Constitution Amendment Bill and the proposed Lokpal Bill, the Lokpal/Lokayukta will have the power of superintendence and direction of the cases as per the interpretation of that term by the Supreme Court. This power will enable them to intervene and ask for a change of IO [investigating officer] if they feel that any IO is being influenced by an indirect carrot or stick.

Though the term reservation has not been used in the Bill, it is clear that there is indeed a thin line separating reservation from the requirement of representativeness. Do you agree?

What has not been adequately appreciated in our country is that reservation provisions in our Constitution are about representation of excluded sections they are not welfare measures. This is clear from the debates in the Constituent Assembly. So the thin line you refer to does not exist as a matter of constitutional history. It is social prejudice, not lack of capacity that is responsible for poor representation. For example, there are high courts that have never had a Dalit judge, or only one or two of them in their history not because of the lack of competent Dalit judges or lawyers but because of social prejudice.

The low number of women and Dalits appointed to our Supreme Court in the last half century is nothing short of shameful. A legislative set-aside is being insisted upon because of the depth and intensity of social prejudice. When that social prejudice abates, these legislative set-asides should become irrelevant.

The Constitution Amendment Bill has been criticised as a smokescreen for a weak Lokpal Bill. Does an institution become strong merely because it is a constitutional body?

Yes, the reality in our country is that merely because an institution is a constitutional body it does become stronger than it would be if it were a statutory body. This is what our experience has shown.

By placing the concept of autonomy of the Lokpal in the Constitution, we will also be providing a strong basis for the judiciary to further flesh out and build the nuances of constitutionally protected autonomy. Imagine how much strength the Supreme Court would have had in the hawala judgment if it had been supported by a constitutional provision that established the principle of the autonomy of the investigative process.

Also, by placing the existence and operation of the Lokpal beyond the reach of ordinary legislative majorities, we will give it considerably greater protection from threats.