Tuesday, June 21, 2011

At the very minimum, the Lokpal should not have any judicial powers......

In the debate on the Lokpal Bill, it’s important for all of us to remember that populism cannot be the basis on which laws are drafted. For eg., the popular view may be that a known terrorist like Kasab should be hung immediately. But the more reasonable view must be that an independent judiciary should satisfy itself with the evidence against Kasab. What if the pictures were concocted by the cops? This may take time and it may be galling to common people. But if the due process of law were not followed, grave errors of judgment could happen. Pictures do lie (Refer the recent Vancouver kiss picture – people thought the couple in the picture were bravely cocking a snook at the police and the violence and kissing willingly; later it was found that they were just kissing as a means of reassuring each other out of fear). It’s a basic tenet in any civil society to judge the evidence calmly before pronouncing a verdict. And for that to happen, the judging authority must be different from the investigating body.

Likewise, the right of an accused to be heard by the judge is fundamental to modern civil society. What if the right to be heard were denied (that’s what Anna’s proposal is)? An investigating agency could pick up any person, charge that person with anything and pronounce him/her guilty without giving him/her any chance to defend himself/herself. This is what happens in Taliban controlled areas of Afghanistan. The Taliban picks up those who flout the laws and delivers justice as well. Make no mistake – the Taliban thinks it is doing the right thing. In its mind, it is not a terrorist organization. After all, it is following the tenets of the Sharia law. Modern nations find this unacceptable. But who can question the action of the Taliban? No one. They are a “law unto themselves”. People in India have reacted strongly against such behavior of the Taliban....I wonder whether people in India understand that this Lokpal proposal of Anna’s team could amount – very really speaking – to the exact same thing.

By demanding judicial powers for itself, the Lokpal has asked for making India into a Taliban state. Of course, the accused could go in appeal to the regular courts, but the point is that in a country where the judicial process is as slow as it is, what happens in the interregnum? What if the regular courts take years to hear an appeal against the Lokpal verdict? Merging investigation and the judicial process has never happened in India before....the accused has always had a chance to be heard and the judicial hearing has always been done by the judiciary. Even in the case of the infamous POTA (Prevention of Terrorist Activities Act) – legislated by the BJP government in 2002 and subsequently repealed by the Congress in 2004 – there was no provision for the investigating agency itself being the judge and pronouncing the verdict. Even there, the judgments were left to the judiciary. The main concession provided in POTA was that the accused could be held for 180 days without a charge sheet being filed (and confessions made to police officers were made admissible as evidence). Even this was considered to be too much and that’s why there were serious protests against it by human rights activists at that time. In fact, it became such a big issue that it was an important discussion point in the run up to the 2004 Lok Sabha elections.

Isn’t the Anna proposal amounting to the same? An accused is investigated by the Lokpal’s investigative wing; the trial is done under the Lokpal’s judicial powers. And a judgment is pronounced by the Lokpal itself. How dangerous is this? Let’s be clear – this could happen to any one of us. Also remember that the Lokpal will be manned by many thousands of people. Are we to assume that all of them would be as clean and committed as Anna himself? Even in the case of POTA, there were complaints of huge corruption against the police, who exercised the powers to settle other scores. This is not a hypothetical scenario, but a very real one.

What one tends to forget is that the Lokpal is going to be a huge body, not just a few “trustworthy” seniors. It could have 20-30 thousand employees. It would have a huge budget as well. As per Times Now’s figures yesterday, the Lokpal budget demanded by Anna is “less than 1% of GDP”. So the highest budget is 1% of GDP. Any idea what that comes to? Rs 65000 crores per annum. Wow! The Lokpal is going to be another huge government-like monster. Many of us think that each of those 20-30 thousand employees is going to be clean like Anna. We believe that because we want to believe it. After all, we are extremely angry with corruption and we believe in Anna. But the truth is that ordinary “government servants” will man the Lokpal. We should not forget how corruption starts in the government. Poor salaries and unlimited powers is a big factor. The same factors will start corruption in the Lokpal. Each of the Lokpal employees will get standard government salaries. Now this low paid government employee who wields enormous powers to investigate will behave just like any common government servant or policeman does...... It’s scary any which way, but just imagine if this corrupt employee was given the powers to judge as well. Imagine if the police had powers to judge and pronounce judgments......we would be like Afghanistan in no time. The only place where I think this is permitted is in the Armed Forces – where court martials are allowed. But do we want to have a court martial kind of system even in civil society? We know what happened to Pakistan when that system applied all over the country.....

Separating judiciary from the investigating wings is an essential requirement of any law in any civil society. Even in business, the same principle applies. When a government company competes with the private sector, the first thing that is needed to provide a level playing field is to have an independent regulator....the government company cannot be the regulator itself. So BSNL and MTNL are government telecom companies, but the regulator is TRAI and the appellate authority is TDSAT. In the old days, BSNL and MTNL were run by the government and DoT (the government itself) would be the law maker as well as the arbiter. This was found to be inadequate and self-serving. Hence today, we have independent regulators.

For the same reasons, judges cannot be probed by the Lokpal. There is a real fear that a corrupt and power hungry Lokpal body could pressurize the judiciary into giving judgments that it wants.

The real truth is that at the very minimum, the Lokpal should not have any judicial powers. Not even quasi-judicial powers. It should be a pure investigating agency. Maybe separate courts can be set up to try Lokpal cases....but those judges should report into their bosses in the judiciary, not in the Lokpal. Further, the Lokpal bill should be discussed by the intellectuals, not the masses of the country. The masses don’t understand the issues.....they are led by emotions. Opinion polls are irrelevant. The difference between a modern progressive state and a tyrant nation is quite small in reality. Separation of judicial process from investigation is a key difference.....


  1. Let the two drafts, one each by the government and Anna Hazare, be out in public. Until then we will be talking through hat. It is absolutely incorrect to think that corruption is due to low salary and all. Think of the corruption cases are pending against whom? low paid starving people or real wealthy ones. If the Lokpal has to be an investigating agency, do we not have enough of them. Where is the need of another one.

  2. All the investigating agencies are formed with no hands and legs! Like, say CVC, an independent agency of hardly 200 members to look into around 1500 issues. It has powers to investigate but has no power to prosecute! It can only advice, which history has proven, are rarely accepted by the government. Other is CBI. The agency allowed to take action, investigate and prosecute, but is not independent. To start an investigation, it has to take permission from its political bosses. Even if the permission is given and charge sheet is formed, the lawyer of govt will handle the case.

    All present systems have been proved useless. So a new powerful and independent agency is the demand of the time!!

  3. 1) Laws should come up by only popular opinion. Being said that no law can come up which violates the Indian Constitution or any of the basic rights ensured by the constitution. So even if such law comes up with popular movement which wants to hand Kasab it can be nullified by SC. Your first argument seems to be baseless.
    2) As per my reading of Lokapal bill, it is only an investigating agency as you have suggested that it should be. It has the same powers that any investigating agency such as CBI/ED has. So even rest of your argument is based on fiction.

  4. @ Selvester: Wrong. At present, as proposed, the Lokpal can investigate, prosecute and also pass verdicts. It can only be challenged in the courts, but that process can take so much time, that it would really hurt the one who's been convicted.

    Also, if public opinion is all that matters, then what would happen if the people of this country wanted laws which hurt the minorities? Should those laws be made? Even the SC may be constrained because they may not run afoul of the Constitution. Look at the Reservation laws in our country....