'Constitutional Lokpal would have been difficult to repeal' - says former Chief Justice

Dec 30, 2011, 12.00AM IST

With the Lokpal Bill becoming the focus of attention within and outside Parliament, Justice V N Khare, former chief justice of India, spoke with Rudroneel Ghosh on the constitutional dimensions of the anti-corruption legislation:

How does the failure to confer constitutional status on the Lokpal affect the anti-corruption ombudsman?

Such an anti-corruption ombudsman was earlier established in Haryana and Punjab through a legislative instrument, that is through an ordinary statute. But there were some political bigwigs who were involved in corruption and the Lokayukta was on the verge of catching them. What the government did then was it repealed the (Lokayukta) Act itself through an ordinance. This happened both in Haryana and Punjab. My apprehension is that if a political heavyweight is under investigation, and the ombudsman has been established through an ordinary statute, then a simple ordinance can be passed to scrap the whole institution. But if the body has constitutional status, then it can't be amended like this. It would have been difficult to repeal the Lokpal had it been given constitutional status.


Can the opposition argue that the minority quota in the Lokpal is unconstitutional?

No. Consider Articles 15 and 16 of the Constitution. Nowhere do they talk about a Hindu, Muslim or Christian quota. What they say is that nothing will prevent Parliament from enacting a law for advancement of educationally and socially backward class of citizens and members of the scheduled caste. There's no mention of religion. When you identify certain Hindu castes such as Yadavs, Kurmis, etc you don't say 'Hindus' are getting reservation; you say they are backward groups and on this basis you give them reservation. Similarly, among the Muslim community you can identify certain backward segments and have a quota for them. So it's not a question of religion but educationally and socially backward communities.

Does the Lokpal Bill impinge on the country's federal structure?

Article 252 of the Constitution provides that in case Parliament doesn't have the power to enact a law, it can on the request of the states make law for those states as well as whosoever is concerned with the law. Article 253 says that Parliament is empowered to enact laws for the enforcement of international treaties and UN conventions. For example, there is no legislative subject called human rights. But because we were a signatory to the UN Human Rights Convention, we enacted laws to establish the National Human Rights Commission. Similarly, the 2003 UN convention on fighting corruption empowers Parliament to make laws to tackle graft. It is on this basis that the Lokpal Bill has been introduced under Article 253. If the UN convention did not exist, then you could say the Lokpal Bill impinges on federalism. But not in this case.

Is there any merit in the Team Anna argument that the CBI should be brought under the Lokpal?

I don't think that the entire CBI can be brought under the Lokpal. The CBI is a huge organisation whose investigative capabilities are used for so many things other than fighting corruption. At best you can put 50 or 60 CBI officers on deputation with the Lokpal. However, if the CBI is under the government and the government is the prosecutor, there is a clear conflict of interest in prosecuting government corruption. I believe the CBI should be autonomous in any case.

Do you think the Lokpal can be a magic bullet against corruption?

Not at all. Just like water finds its own level, people will find other routes to corruption. But the Lokpal can be a deterrent and create some fear in the minds of potential offenders.

Link to the Times of India, Opinion page: http://articles.timesofindia.indiatimes.com/2011-12-30/edit-page/30569236_1_lokpal-bill-constitutional-status-anti-corruption-ombudsman