The Lokpal Bill-VIII: The Jurisdiction of the Lokpal
Posted on June 10, 2011
Should the Prime Minister and other higher bureaucracy be exempt from the Lokpal scrutiny? While opinions in the country stay divided on the subject, TR Raghunandan, chief spokesperson, ipadiabribe.com shares his views on the subject.
The most important question, following the how and of whom the institution of the Lokpal should be constituted, is what ought to be the nature and scope of its jurisdiction and what complaints ought to be entertained by it. This is a matter not without its fair share of controversy and division of opinion, particularly when it comes to the question of the Lokpal’s jurisdiction over the institutions of the Judiciary, the Prime Minister, Chief Ministers, Union and State Ministers and the higher bureaucracy.
There is a narrow band of agreement between the Government version and the Jan Lokpal bill, as both cover the Union and State Ministers, as well as Members of Parliament and legislatures. However, the Government version does not touch bureaucrats, who come within the jurisdiction of the Central Vigilance Commission. The Government version also leaves out the Prime Minister and the higher judiciary from the purview of the Lokpal. It is on these issues that most of the debate is concentrated.
Should the Prime Minister come within the jurisdiction of the Lokpal?
While the Janlokpal insists that the Prime Minister ought to be covered, the stand of the Government so far has been that the Prime Minister ought to be excluded. The Government relies on several points of view, most of which have been articulated well in two high level reports, that of the National Commission to Review the Working of the Constitution (2002 – the Justice Venkatachalaiah Commission) and the Second Administrative Reforms Commission (2007 – the Veerappa Moily Commission).
Both commissions felt that the office of the Prime Minister should be kept out of the purview of the Lokpal. Their reasoning was similar; both felt that the Prime Minister is totally accountable to Parliament and therefore there is no need for separately bringing this office under the purview of the Lokpal. Both felt that the Prime Minister has very important executive responsibilities and in the interests of stability and continuity, should not be vulnerable to investigations commenced by the Lokpal.
The Round Table of April 24 brought several important points to the forefront, with respect to this debate. Justice Venkatachalaiah summed up the stand of his commission, by saying that the relationship between the Prime Minister and Parliament is essentially a political one and one must resist the temptation to make legal rules to govern a political relationship. In his words, bringing the Prime Minister under the purview of the Lokpal would ‘introduce a very high level of vulnerability into the highest executive post, to the detriment of the country’.
Internationally, the experience with respect to the bringing of high political functionaries shows a lot of variation. The Swiss Parliamentary Ombudsman has jurisdiction over State and Municipal Authorities but not over the members of the government or ministers. The Independent Commission Against Corruption in Hong Kong stated the jurisdiction of the commission most widely, as covering any person holding an office of emoluments, whether permanent or temporary, under the government and any judicial officer holding a judicial office.
So what is my take on this?
Personally, I favour the view that the Prime Minister ought to be brought under the purview of the Lokpal, for several reasons.
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• First, the issue of whether the Prime Minister ought to be brought under the Lokpal, depends on how we perceive the larger question, whether political elected representatives and the political executive drawn from them ought to be brought under the Lokpal. If we answer the question in the negative and keep all elected representatives and the political executive out, then it obviously does not make sense to bring the Prime Minister under the Lokpal. However, if one does bring them within the purview of the Lokpal, there is no compelling reason to keep the PM out either.
• That such a viewpoint should be held by many is a reflection of the way in which our perception of the post of the Prime Minister has altered over the years. Strictly speaking, the Prime Minister subscribes to a Westminster style of Parliamentary Democracy - primus inter pares; first amongst equals. However, the working style of the post is now more presidential and there has been concentration of many powers, both formally and through convention, in the Prime Minister. This is also reflected in the way that the bureaucracy around the Prime Minister has burgeoned; the small secretariat that functioned to keep track of the PM’s appointments in the early days is now a large and powerful office, capable of wielding influence over all matters of policy and action.
• However, does the ‘presidentialisation’ of the functioning of the PM, justify any immunity from oversight by the Lokayukta? In my view, it ought not to be that way. This is because I believe that the growth of India’s democracy ought to be in the direction of diminishing the importance of individuals. I would want India to reach a level of democratic practice that is so institutionally entrenched that the importance of individuals and their decisions diminish in comparison to that of institutions. Keeping the PM out of the purview of the Lokpal, even as we bring the other levels of the political executive within it, would reinforce the trend to presidentialise the post of the PM.
• There is another practical reason why we ought not to keep the PM out of the Lokpal’s ambit. Assuming that the PM is kept out of the Lokpal’s scrutiny, the question – and there does not seem to be a clear answer so far to it – is whether such immunity extends to the other executive portfolios that the PM holds. In our country, the PM is also minister for Atomic Energy, Space and a host of other key departments. Would immunity from the Lokpal extend to protect the PM from his actions as minister in these departments? If that is so, it is but a small matter for a malafide and adroit PM to take over sensitive and corruption prone ministries and escape examination by the Lokpal!
Therefore, I am in favour of not excluding the Prime Minister from the jurisdiction of the Lokpal.
What’s your viewpoint? Do you agree? Disagree? Write in here and tell us.
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 Lokpal Bill-V: The light must shine on us all
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