The Lokpal Bill-V: The light must shine on us all
Posted on May 16, 2011
In this post, the next in the series on the Lokpal Bill, T.R. Raghunandan shares his views on the qualitative structure of the Lokpal Bill, reservations, representations and other issues to consider.
Constitution of the Lokpal: The Government draft suggests that the Lokpal be comprised of one chairperson and two members. The Jan Lokpal bill recommends a larger number, one chairperson and ten members. The 2nd Administrative Reforms Commission suggested a three member Lokpal or Rashtriya Lokayukta, comprising of a Chairperson who is a retired Supreme Court Judge, an eminent Jurist and the Chairperson of the Central Vigilance Commission as an ex-officio member. During the Round Table, many members favoured a smaller Lokpal, mainly because they were still not sure about the scope and ambit of the Lokpal’s powers. The former CECs present were of the view that three members would suffice, their feeling being that any larger a number would be too unwieldy.
One of the issues that came up was the question of whether there ought to be reservation for the scheduled castes and tribes, backward communities and other minorities. The issue of whether there ought to be reservation for women was also discussed. On matters such as these, as expected, there was sharp difference of opinion. One gentleman firmly said that the best should be selected, so therefore, there ought to be no reservation. I disagreed.
I believe that whenever people say that they want the best, their search automatically confines itself to the people they know. The elite always believe that the best is in their immediate circle or to be found amongst people like them; thus setting in place and strengthening a subtle system of automatic exclusion. In my view, reservation does not dilute quality; instead it forces a search for the best to be more inclusive. In the absence of reservation, a competent person who does not belong to an inner club of elites and their acquaintances can easily be overlooked.
These views were uppermost in my mind when I put up my hand for my first intervention. I said that while a formal reservation system need not be put in place, care must be taken to ensure that the composition of the Lokpal team, whether it comprises of three or ten individuals, takes into account the diversities seen in our country. I pointed out that the ethnic or economic background of those who hold high office in the judiciary does have a bearing on the mind-set and views harboured by it. The jurisprudence that emerges from a judicial body cannot be unaffected by its composition. I pointed out that of the nine Supreme Court judges in the US Supreme Court, only one is a White Anglo Saxon Protestant. It was unlikely that our courts would be comprised of such a diversity of representation. This emphasises the need for a conscious effort to spread the net wide.
I would like to elaborate on this viewpoint for your benefit.
It is extremely difficult for anyone to be entirely divorced from their culture and upbringing when carrying out his or her official responsibilities. Thus, if a judge insists upon a conventional arranged marriage for his children within his caste, then it does affect his mental state when he forms an opinion in a case before him. Much as they try to be fair, these biases do affect their judgments. For instance in the civil services - I would find it very difficult to believe that a civil servant who demands dowry for getting married will undertake his official work without a gender bias, however subtle it may be. If the Lokpal is to be fair, then it is necessary that such biases are counterbalanced through a diverse representation.
To elaborate on my US example, the maternal great-grandparents of the Chief Justice of the United States Supreme Court, Justice John Roberts are from erstwhile Austria-Hungary. There are three women Justices, two of them Jewish and the other of Puerto Rican descent. Apart from the two Jewish women, one more Justice is Jewish. One Justice is of Sicilian descent, one a first generation Italian American and a third an African American, whose grandparents were slaves. Most judges have grown up in poverty. Only one judge is a White Anglo Saxon Protestant.
Perhaps the reason is that they believe that in a democracy where the majority can have their way in the constitution of the political and executive arms government, the Judiciary is to act as a counterbalance of power, to protect those who do not have the strength of numbers or money in their favour. If India were to achieve the same balance, then of its 29 Supreme Court justices, at least 26 ought to be from the socially backward communities and minorities or women!
The question is, will the Lokpal, whenever it is constituted, possess the same balance? I argue that it must, but fear that it might not. The natural tendency will be to search for individuals within the familiar space of the elites who make the search. Yes, surely there will be women and representatives of the scheduled castes, tribes and backward communities, but my fear is that their representation is likely to be tokenistic.
-T.R. Raghunandan
PS: This is a sensitive subject and many readers might disagree, but it is my viewpoint, expressed transparently. The next few posts will take this discussion further. Watch this space for more.
Read the other posts in this series here:
The Lokpal Bill VII–Safety locks
The Lokpal Bill-VI: Heavy is the head that wears the crown
The Jan Lokpal Bill-IV: Questions we need to be asking
The Jan Lokpal Bill–III: Setting the Stage for Discussion
It’s a fast. Not blackmail.
Annaji and I