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 powers, often 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 Kerala, have 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

"...no 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.