The elusive and utopian Lokpal

‘All hail the Lokpal!’

The above quite describes the mood of the ‘Jan’ ever since respected gandhian Anna Hazare began his fast-unto-death. However, all ‘gold and glitter’ as it may seem the Lokpal has still remained as elusive as the Abominable Snowman, Yeti or the Lochness Monster through all these years, and that is in part because of its own problems, inherently present in it’s very concept. Ofcourse, the ‘surreal’ support it has garnered from government after government only adds to its roadblocks on its ‘highway to heaven’.

One of the first and most fundamental blunders that the institution of Lokpal suffers from is when it compares itself to such constitutional bodies such as the Supreme Court and the Election Commission of India. To formulate such an independent body as the Lokpal it would surely have to first find a place into the Constitution. While the former are independent bodies that have been provided for within the constitution from the very beginning itself the latter is proposed to be a completely new body with no previous mention in the constitution.

Well, why can’t they simply amend the constitution, you ask?

Enter doctrine of basic structure propounded by the Supreme Court of India in the case of Kesavananda Bharati vs. The State of Kerala; AIR 1973 S.C. 1461 which said that any part of the Constitution may be amended by following the procedure prescribed in Article 368, but no part may be so amended as to "alter the basic structure" of the Constitution which is in short, unamendable. It is herein that the court reserved for itself a back door entry, the discretion to reject any constitutional amendments passed by Parliament simply by declaring that the amendments cannot change the constitution's ‘basic structure’.

And what exactly is this ‘basic structure’?

Well, It seems nobody knows except for the fact that its putty in the hands of the Courts.

Chief Justice Sikri, writing for the majority in the above case, indicated that the Basic Structure amongst others included the maintenance of the separation of powers.

Now, the major hurdle that arises in ‘the revolutionary road’ to Lokpal is that it would take nothing short of a revolution to materialize, since it will most definitely will alter the balance of power as it currently rests within our polity. That is primarily because the idea is to introduce a fourth pillar to our democratic setup, that too over and above the already present Legislature, Executive, and Judiciary, since the politicians, officers and judges respectively are to be answerable to the Lokpal for their wrongful and corrupt acts.

Also another problem is the selection and appointment procedure of the Lokpal. As is apparent, there is neither a system of referendum within our constitution, nor, such a provision, for formation of a special Electoral College comprising of judges, citizens and constitutional authorities to elect the Lokpal as is proposed. Also, who would watch over the fairness and transparency in Lokpal’s election? Moreover even if miraculously selected who is to officially appoint him and administer the oath to him?

I don’t even want to start on the practicality front because who finances his own hitman, who appoints his own hangman, who sharpens the axe meant for his own execution?

Lastly, if the Lokpal watches over everybody else who watches over him, i.e. who would take the complaints against the Lokpal or one his officers?

Thus, all I am saying is that, even though the lofty concept of the Lokpal as proposed by the much-hyped Jan Lokpal Bill is a beautiful ‘castle in the air’, but will it stand strong on the real ground?

(The above article is not intended to take sides on the political front or even venture into the political jungle. It is purely meant to check the legal feasibility of the proposed Jan Lokpal.)

NDTV's 'We the People' Debate over the Communal Violence Bill

The following is a link to the Debate over the Communal Violence Bill in NDTV's 'We the People'. Fortunately, I too got an opportunity to feature on the show even though just for aesthetic purposes, that too barely. Anyways, thoroughly enjoyed the intellectual stimulation, hope you do too.
http://www.youtube.com/watch?v=Rwsk5-hRI5g

The Communal Violence Bill: A flawed law in the making

D.L. Horowitz, in his ‘The Deadly Ethnic Riot’ defines Communal violence (which is sometimes also referred as inter-communal violence) as a situation where violence is perpetrated across ethnic-lines, and victims are chosen based upon ethnic group membership often resulting in massacres.

As is common knowledge, recently the NAC (National Advisory Council) of India has formulated a draft bill termed as ‘The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011’ that is going to be tabled in the monsoon session of the Parliament, dealing with the same issue. However, is the bill actually what it claims to be?

First and foremost, I would like to say that the short title of the bill is itself a misnomer. Well, yes, I know that’s a pretty strong claim but consider this. What the bill claims to protect the population against is ‘Communal violence’, which is a fairly common occurrence in South Asia, especially the Indian subcontinent, owing to its large ethnic and cultural diversity and typically means a form of mutual aggression, in which members of all involved ethnic groups and sects serve both as the perpetrators as well as the victims of violence. However, a closer look at its various provisions would show that actually it only protects against ‘Genocide’, which is just a sub-category of communal violence, forming a smaller circle within that bigger circle, in which the participating ethnic groups and sects, can be assigned mutually exclusive roles as either perpetrators or victims of violence, i.e. there is solely a one sided aggression. Now, It may not look much but let me warn you that even a small discrepancy can spell ‘hell’ for the people it governs. This ‘Genocide’ is what took place in Nazi Germany while independent India evidently has no proven history of any such event. What India really needs is quite certainly a law dealing with the core issue of ‘Communal violence’ and certainly not a half-hearted vote-bank driven legislation.

One of the biggest scopes for improvement that I see is in the definition clause itself. Many of the provisions contained therein like “Association”, “Communal and Targeted Violence”, “Dereliction of Duty”, “Destroying the secular fabric”, “Hate propaganda”, “Hostile Environment”, “Intimidation”, “Knowledge” and more particularly “Group” and “Victim” are not precise and are of a preferential nature which may give the government unbridled power leading to misuse and could greatly curb the freedom of speech and expression of the press, amongst others.

Also, It gives the Central government previously unseen powers to intervene with the judiciaries’ functioning, including power to refer cases for trial to the Judiciary under the Criminal code, treating proceedings conducted by it as judicial proceedings and power to move cases to judges and courts outside a state on the mere apprehension of impartiality.

Moreover, the bill wrongly takes an extremely perverted assumption that the perpetrator of Communal violence is always the majority. Also the bill empowers any anonymous complainant to file a police case against a member of the majority community for inciting communal hatred binding the police to register it as a non-bailable offence. This could be very easily and widely misused.

What’s more? To complete the picture, the bill even has a striking resemblance to previously failed and misused anti-terror laws like TADA (Terrorist and Disruptive Activities (Prevention) Act), 1985 and POTA (The Prevention of Terrorism Act), 2002.

Further, the National Authority has been presented as an unchecked autonomous body. There is no mention in the entire draft bill on how exactly the proposed ‘National Authority’ will be accountable to the Parliament for its interventionist conduct beyond the token act of placing its annual report during the monsoon session.

With all this and more, if nothing else, the bill certainly manages to raise some deep reaching Questions:

1.                  Is this not a legally objectionable outsourcing of an inherently governmental function of drafting the bill to an external body headed by the UPA chairperson?

2.                  Are the provisions concerning the government’s powers over the judiciary not in violation of the constitution? Don’t they partially take away judiciaries’ independence in its functioning and its powers especially that of administering its own affairs?

3.                  "Who will guard the guards themselves?" doesn’t the same timeless question that the UPA government has been raising as a shield against the Jan Lokpal Bill become the dagger in it own chest in this case?

Thus, before concluding I would just say that even though the current draft of the Prevention of Communal & Targeted Violence Bill is a much improved one, atleast from its previous versions, yet it greatly falls short of the requirements of the times and the expectations of the people.

(Leaving aside any politically motivated debate, this article is purely meant to provide a strictly legalistic exposition of the much-hyped Communal Violence Bill. It only provides a summary view of my own opinion and is meant to raise some hard hitting questions within the minds of its readers and probe them on, into a healthy debate.)