Wednesday, August 24, 2011

Separation of powers vs. the Draft Jan Lokpall bill

Based on certain clarifications I obtained elsewhere, I am making changes to the post (highlighted in black).

According to Wikipedia, “the separation of powersoften imprecisely used interchangeably with the trias politica principle, is a model of governance of a state. Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that no one branch has more power than the other branches. The normal division of branches is into an executive, legislature and judiciary.”

The conferment of power in a single body leads to absolutism. “Power corrupts and absolute Power tends to corrupt absolutely” is attributed to Lord Acton. Thus, the doctrine of separation of powers is considered important as a check against tyrannical rule. The purpose is to diffuse the authority of the State to prevent absolutism and to “allocate each function to the institution BEST suited to discharge it.” [Source]

It can be argued that this doctrine is not applicable to India in its strict sense. Separation of Powers, in its pure form, can only be seen in a presidential form of democracy. So, it’s quite evident from the Constitution that India, being a parliamentary democracy, does not follow an absolute separation. Instead, the democracy functions based upon a fusion of powers. Here, a close co-ordination among the three principal organs of the State is unavoidable. “Thus, every organ of the government is required to perform all the three types of functions. Also, each organ is, in some form or the other, dependent on the other organ which checks and balances it.” An example of this can be seen in how Cabinet ministers are part of both the executive and the legislature. [Source]

However this does not mean that the doctrine is not followed at all. Various Supreme Court rulings, most notably Kesavananda Bharati v. State of Keralahave upheld that maintenance of the separation of powers is comprised in the basic structure of the constitution. In essence, the notion is that, in light of growing administrative challenges, though an organ of the State can delegate responsibilities to another, with regard to the basic constitutional functions of each of these organs the sanctity of the doctrine of separation of powers should be maintained. This keeps in mind the purpose of such a doctrine, where each function is allocated to the institution BEST suited to discharge it.

Keeping the above points in mind, I would like to highlight a few clauses in Version of 2.2 of the Jan Lokpal Bill, that seem to violate the constitution’s basic structure. I am no authority in this matter. So, please, correct me if I am wrong, and if the clauses I’ll mention in a while have been modified in the newer versions of the bill.

Proponents of the bill have said that it is important to bring the judiciary under the ambit of the Lokpal. No one is above the law. This I agree with, provided what Arvind Kejriwal says at the start of this interview is true. He mentions that the ONLY change from the current system that the bill envisions is the ability to file an FIR against any judge without prior approval of the CJI. This is important in a strong Lokpal bill. Similar points have also been made here.

It is also said that "the powers of Lokpal are limited to investigation, collection of evidence and prosecution. The Lokpal can bring a case to the court, and the judge will then decide on the basis of the presented evidence whether the person is guilty" [Source]. If this spirit was unambiguously spelt out in the bill, I believe it has all the makings of a strong yet democratic anti-corruption system.

Therein lies the problem. There seem to be a few contradictory clauses in the bill (Version 2.2). Take these instances. Again, correct me if I am wrong, and the following clauses have been modified in the newer versions of the bill.

1) Section 27.2
" proceedings or decision of the Lokpal shall be liable to be challenged, reviewed, quashed or called in question in any court of ordinary Civil Jurisdiction."

What decision is the bill talking about here? Can the Lokpal impose punishments? If so, however minor the punishment may be, this is akin to handing judicial powers to the Lokpal. That goes against the separation of powers envisioned in our Constitution.

Quasi-judicial powers akin to what policemen have (like imposing fines) and other administrative punitive measures may be handed to the Lokpal without affecting the integrity of the Constitution. This is in accordance with the 'delegated responsibility' argument. However, all the decisions of the Lokpal should be subject to judicial review in the High Courts and Supreme Court. It seems that "court of ordinary civil jurisdiction" in Section 27.2 refers to a lower court. This has to be further clarified.

2) Section 8.2
"The Lokpal, after getting such enquiries and investigations done as it deems fit, may take one or more of the following actions:
a. Close the case, if prima facie, the complaint is not made out, or
b. Initiate prosecution against public servants as well as those private entities, which are parties to the act.
c. Recommend imposition of appropriate penalties under the relevant Conduct Rules provided that if a government servant is finally convicted under the Prevention of Corruption Act, the penalty of dismissal shall be recommended on such government servant.
d. Order cancellation or modification of a license or lease or permission or contract or agreement, which was the subject matter of investigation.
e. Blacklist the concerned firm or company or contractor or any other entity involved in that act of corruption."

What are (d) and (e) if not a form of punishment? Shouldn't that be the prerogative of the court? Or, does the Lokpal do this only AFTER the court has given a verdict? Or, can the court repeal this decision of the Lokpal if the accused is reprieved? (Section 27.2 (1, above) says that the court cannot quash a decision of the Lokpal).

Administrative punitive measures are fine. Executive bodies are allowed this within the Constitution, provided, they have no immunity from judicial review. Are (d) and (e) administrative punishments? That is debatable.

3) Section 8.5
"Orders made by Lokpal under sub-section (2)(c) of this section shall be binding on the government and the government shall implement it within a week of receipt of that order."

Again, if it is the court that gives the verdict, what Lokpal orders (when read in conjunction with (2)(c)) are being mentioned here?

Administrative punitive measures, again. But what exactly is meant by an administrative punitive measure should be included in the draft, in my opinion. As always, I am not competent enough to comment on matters of law and do correct me if I am wrong.

4) Section 10.2
"For the purpose of any such investigation (including the preliminary inquiry) the Lokpal shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 , in respect of the following matters, namely:-
(a) Summoning and enforcing the attendance of any person and examining him on oath;"

Why would a non-judicial body examine someone under OATH? Can the CBI/Police do this?

5) Section 10.3
"Any proceeding before the Lokpal shall be deemed to be a judicial proceeding with in the meaning of section 193 of the Indian Penal Code."

What does that mean?

6) Section 13A
"Special Judges under section 4 of Prevention of Corruption Act: 
(1) On an annual basis, the Lokpal shall make an assessment of the number of Special Judges required under section 4 of the Prevention of Corruption Act 1988 in each area and the Government shall appoint such number of Judges within three months of the receipt of such recommendation.

Provided that the Lokpal shall recommend such number of Special Judges so that trial in each case under this Act is completed within a year.

2) Before making any fresh appointments, the Government shall consult the Lokpal on the procedure to be followed in selection to ensure the integrity of the candidates selected. The Government SHALL implement such recommendations.”

Doesn’t this in essence give the Lokpal complete authority in selecting the special judges? Doesn’t that sound like an encroachment into judicial powers?

Apologies. Here, it seems like I made a mistake. Here's a part of the clause again. "the Government shall consult the Lokpal on the PROCEDURE to be followed in selection to ensure the integrity of the candidates selected". I seem to have missed this in the verbosity of the draft. So the Lokpal can only recommend the number of judges in the special court and the procedure to select them. They can't recommend judges per se. Whether this too is an encroachment into judicial autonomy or not,  is debatable.

One other thing, I don’t think it is the Government that appoints judges. According to the Constitution that is the prerogative of the President or the respective Governor. Correct me if I am wrong.

All-in-all, the bill does not clearly specify how the trials will be conducted. It is not clear if the Lokpal has absolutely no judicial powers. There are many more clauses like the above that warrant a healthy debate. This debate is essential before passing the bill and thus, the August 30th deadline is unreasonable (and undemocratic if it stifles this debate). There are some genuine concerns about the bill out there as well and, unfortunately many of these are getting lost in the posturing that these concerns are not "well-intentioned".

It is easy to dismiss all these as mere technicalities. Quoting Shashi Tharoor “we must do the right thing but we must do the thing right” [Source]. But, then again, as someone commented here, “it is not necessary to know all the technical details of the bill.” That’s half the problem with the way the movement is proceeding now.

I’ll conclude this piece by reiterating my sentiments.
Do I want a strong and independent Lokpal to fight corruption? A resounding, yes.
Do I want the toothless government version? No
Do I want the ambiguous and in some ways unconstitutional ‘civil society’ version? That’s a no, too.

What’s required is a healthy debate to introduce more clarity in the Jan Lokpal bill. Once there is an atmosphere for healthy debate, there no longer need to be the fear that the debate will go on indefinitely and necessary actions will be stalled. I still have faith in parliamentary democracy.

Thanks for your time.

PS: Of the clauses mentioned above, only point 4 remains in version 2.3 of the draft. Now that the Parliament has passed a resolution agreeing to the key demands of Anna Hazare and it is very likely that we would sooner or later have a Lokpal, here is a new post on the different levels of corruption.


Ramji said...

Good one dude... Some points are really a concern..

Ramji said...

I've shared it... as its worth reading and giving a thought....

Kirklops said...

Thanks Ramji.
I have made a few changes to the post based on a few clarifications I received. Most of the concerns still stand, though.

Vikram said...

I know about separation of powers, I also know about the proposed Jan Lokpall bill. Understand this if they were so rigid about this, they wouldn't have worked with a very hostile government for a year, they tried and tried again to propose a powerful Jan lokpall, they still not saying that they want their exact bill to be passed. The government who has laminated charges against the civil society has actually forgotten that they were the ones who in the first place had asked them to work on this very bill. Every corporate has a ombudsman and even the CEO is accountable to it and the board of directors, why not put the CEO of the nation under this, why shouldn't he be scrutinized, again if the very PM is accountable then cases like Bofors, 2G scam etc, might still have happened however the PMO would have been saved from the embarrassing situation it is right now. Again the preamble states we the people and not we the government or the judiciary. The government which is now talking about separation of powers went out crying when SC starting using its Judicial activism in the right manner. Lets keep it to the real reason, which is corruption, sick and tired of paying high taxes and not getting anything in return. Corruption is everywhere,i.e privatization of electricity and you still don't get to choose your supplier. I would say that I am corrupt because I am encouraged to be, not by my parents or my social circle but by the system which allows it to be like this.Hum Jugaad dhoodnte hai, because system jugaad karwata hai. Lets have a voice against corruption, the world is not black and white!

Vikram said...

Also i forgot to mention the powers of the 3 courts and the judicial preview of the courts as well. no where does the jan lok pall bill suggest that it quashes all those powers. Judicial review continues to exist. Also right now the judges are appointed to high court and supreme court by the president in consultation with the Chief Justice,judges in India are appointed without any transparency, and based on a undisclosed criterion, which for me is reflecting an increased democratic deficit. To highlight a fact less than 5% of the judges are women, no diversity there either. Wouldn't it be fare to have an independent commission to have appointments made to the higher judicial offices. Everyone knows the corruption in the judiciary that exists and at every level within. The government in 2008 proposed a bill to curb this, proposed was a commission to look into the charges made against a judge, this would have been looked into by a panel of judges with the chief justice as the head of the commission. India is a quasi federal state, where more powers are given to the central government than the state governments. The PMO office thus should be under the umbrella of the Lok Pal bill.

Kirklops said...

Lets have a voice against corruption, yes. I am all for a strong Lokpal. But, there are some legitimate concerns about the current version of the Jan Lokpal bill. It is not just the government citing the 'Separation of Powers' argument. It is a genuine concern since it is part of the basic structure of our constitution. There are a few ambiguous clauses in the bill that have to be debated and clarified. I am not saying that Team Anna is not receptive to genuine critique. Only, that the August 30th deadline is unreasonable since such a dagger only stifles debate. Debate is essential to a democracy.

Once again, I am not saying I understand the bill better than the eminent people who drafted it. But I do have a right to raise questions based on my current understanding of the constitution. If there is something wrong with my understanding, I am happy to learn and evolve. But for that you have to clarify why you say that judicial review continues to exist when one of the clauses seem to suggest the contrary.

"Wouldn't it be fair to have an independent commission to have appointments made to the higher judicial offices." Maybe so, maybe not. But that is not what the Jan Lokpal Bill is about.

Kirklops said...

And Vikram,
One more thing. Nowhere have I said that PMO accountability should not be included within the provisions of a Lokpal bill. No one is above the law.
Separation of powers does not mean that the Lokpal should not investigate corruption charges leveled against the PM or any judge. It means the Lokpal cannot investigate and deliver judgement at the same time.

sinu said...

well articulated .........kudos.....

Kirklops said...

Thanks sinu.

shreyunik said...

Well written.thanks for pointing out debatable issues..I haven't yet gone through the entire Jan Lokpal bill to get the correct picture on what it proposes. But believe, that in any case, unless the govt is pressurized, it would not have passed a stronger bill which is the need of the day! Hence, the Aug 30 the deadline is more of a pressure tactic rather than a stubborn deadline. Atleast, the govt should take a step forth in the right direction!!

Kirklops said...

Thanks shreyunik.

Here, we'll probably have to agree to disagree. Pressure tactic or stubborn deadline, if it makes the Parliament pass the bill with less than due debate, that is bad.

Vikram said...

The jan lok pall drafted by the civil society is in now ways fool proof, and they not saying that they want the exact thing to be passed either, they have from day one been demanding a strong lok pal bill.

As far as I can ascertain from all the comments, each one of us wants a strong Lok Pal as well, we need decentralization of powers. People ask me stupid questions who is going to catch a local policeman taking bribe or a babu asking for one, the problem is bigger than this. Corruption has a trickling down effect, does not go bottom to top always follows top to bottom approach.I seriously have a concern with my right to have a good living in my own country at the right margins but neither my heart, nor my mind and of-course my wallet is so not happy with the current state of affairs. Need a strong lok pal bill lets have a better India, jai hind!

Kirklops said...

Here, I have to disagree. What is the deadline if not obstinacy? Let us assume for a moment that after debate in the Parliament, a version evolves without the ambiguities. Going by the statements of the proponents over the last few days; it seems like the team will claim that the bill has been watered down and continue with the pressure tactics. I hope I am wrong.

Shyam Moolayilkalarikkal said...

Hi Kirklops:

Thank you for clearing out the points mentioned in Jan Lokpal bill. I believe there are lot many people, who actually don't know that (1)What is the Jan LokPal bill all about (2)what is the Govt version of it and the difference between the Anna's and the Govt.

And it is very true and makes sense if we say "we should not follow things blindly just because the sake of doing things".

The good thing I see happening is:

Govt and all parties have initiative to go on for a discussion (mainly due to Anna's and the growing people support for the movement)

Worry: Should we be strict on dead lines for the bill?

(1) We are not setting a company or corporate policy here. What is going to introduce will change the face of India. We should give time to people/Govt/Parliament to discuss & debate and come-up with best that can fight corruption once and for all.

(2)Yes there have been lot of support for Team Anna but are these voice of the entire India, are we sure? Can we have voting for how many supports the bill and how many are not (like we have for post elections)

Kirklops said...

Thanks Shyam for expressing your views.

You are right when you say "we should not follow things blindly just because the sake of doing things". Action for the sake of action, without due thought, is part of a fascist mentality.

Now, regarding the concern that the support to Team Anna may not be the voice of entire India, a referendum is possible to know for sure. However, if due time is given to the Parliament to debate then the resultant bill gains legitimacy without a referendum.

Shyam Moolayilkalarikkal said...

Agree. So it wait and watch time now!

dr tameem said...

good analysis , we need it as we continue to support he cause

Kirklops said...

Thank you Dr. Thameem.