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.)