Tuesday, October 11, 2011

Take it Anna, BJP…..Lokpal could be a constitutional body!

I have written about this in the past. If the Congress wants to extricate itself from the mess it finds itself in (partly unfairly in my opinion), it must take some bold steps to re-prove its credentials to rule. The decision of the Congress government to confer Constitutional status on the Lokpal should put to rest any doubts people may have about the sincerity of the Congress in acting tough against corruption. It should make Anna happy; and it should make the BJP shudder…..Needless to say there is a huge degree of political one-upmanship here since the idea of a Constitutional body was first mooted by Rahul Gandhi…..at that time, many in the BJP pooh-poohed his speech in Parliament. What will they say now?
But first, it’s good to look at what the difference between a Constitutional and a Statutory body is. A Constitutional body is set up under specific instructions given in the Constitution. It is mandatory for the government to set up such a body and it cannot dispense off with it easily when it becomes uncomfortable. On the other hand, Statutory bodies are set up by statutes which Parliament and State Legislatures can pass. Since there is no instruction to set up these bodies in the Constitution, there is no obligation on the Parliament or State Legislatures to set them up. The main difference is that a Constitutional body must exist even if Parliament is unhappy with it – while a Statutory body can be disbanded if Parliament wants to do so with a relatively simple process. By making the Lokpal a Constitutional body, the Congress is giving it far more teeth than any statutory body can ever have.
Let’s look at this closely. Take the Constitutional body called the CAG (the one that has caused so much pain to the Congress – at least partly perhaps for reasons of political motivation). The CAG is not an option for the Indian Parliament. The Constitution specifically says that it must be created (the specific word used in the Constitution is “shall”). Art 148 of the Constitution says that “there shall be a Comptroller and Auditor General of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office in the manner and on the like grounds as a Judge of the Supreme Court”. This article makes it mandatory to set up the CAG. Likewise the Election Commission of India has been set up under Article 324 of the Constitution which reads as follows: “The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to Parliament and to the Legislatures of every state and of elections to the office of President and Vice President held under this Constitution shall be vested in a Commission”. Again, the word shall makes it mandatory to set up the EC. On the other hand, a statutory body “may” be set (not “shall”). For example the CAT (Central Administrative Tribunal) was not set up under the Constitution but only enabled by it. Article 323A of the Constitution prefers to use the word may rather than shall when it says that “Parliament may, by law, provide for the administrative adjudication or trial by administrative tribunals….” Clearly, there is no constitutional obligation on Parliament or the Central government to make a law to create a CAT.
The second big difference between a Constitutional body and a Statutory body is in the manner in which it can be abolished. A Statutory body can be abolished by a mere simple majority (50% of members present and voting) and hence the ruling government alone can abolish it if it feels the the heat from it. On the other hand, a Constitutional body needs a 2/3rds majority of the full Parliament (not only members present) to be abolished. Even this can only be done when there are grounds for proven misbehavior or incompetence. The only way in which a Constitutional body can be abolished is by another amendment to the Constitution – but since the Supreme Court is the watchdog of the Constitution, it may intervene if it finds the amendment out of line. The SC however cannot intervene if a Statutory body is abolished since its existence is not mandated by the Constitution. Net net, the abolition of a Constitutional body cannot be arbitrary. As a result, a Constitutional body is totally independent of the ruling government (the Executive). Sometimes, this strict procedure for “impeachment” leads to its own problems – for eg., many of us fret that since independence, no judge of the HC or SC has ever been impeached for corruption charges by Parliament.
A Constitutional body is also financially independent of the Executive. As also in respect of its powers and rights. All this is mentioned in the Constitution itself and Parliament cannot reduce them once the body has been created. The salaries of the officials of the body are charged to the Consolidated Fund of India. The Parliament cannot vote on it during budget discussions. The only way the salaries of the officials of a Constitutional Body can be lowered is when the President declares a financial emergency. Just for the record – India has never declared financial emergency in its 64 years of existence.
Yet another advantage of a Constitutional Body is that it has to be set up in EVERY STATE. It’s no longer discretionary for the states to have a Constitutional Body. As a result, it is protected from local politics at a state level.
It’s because of such strict rigidities of Constitution bodies that Parliamentarians rarely create them. Parliament often tries to avoid giving constitutional status to bodies so that it can later clip their wings if required.
By proposing first during the Parliamentary discussions and pushing for it again now, the Congress is showing that it is not afraid of making the Lokpal a Constitutional body. It realizes that in a coalition-era, it may never be able to repeal the body by itself. By pushing for a Constitutional body, the Congress is also throwing a challenge at the BJP – a party which has been making loud noises in the media about having a strong Lokpal, but has made very puny efforts in reality. The state of affairs in BJP ruled states with respect to the Lok Ayukta is well known. In Gujarat, Narendra Modi has stonewalled any efforts to appoint a Lok Ayukta for the last 7 years (no wonder there are very few charges of corruption against Modi), while in many other prominent states where the BJP has ruled for long, there is no Lok Ayukta Act at all. The party made a lot of noise supporting Anna’s JLP, but in reality it found many clauses objectionable. By proposing the Lokpal to be a Constitutional Body, the Congress is throwing a strong challenge to the BJP. Support it – or you will be thoroughly exposed.
Likewise, a Constitutional Body will put paid to Team Anna’s penchant for grandstanding. What will it say now? How stupid will it look in egging people on to vote against the Congress – and by corollary in favor of the corrupt in the other parties – now that the party has proposed a Lokpal set up even stronger than what it itself had dreamed of? How stupid will it look in behaving like small children – restless and impatient to know what Parliament was going to do and unable to wait till the winter session a few weeks away? How stupid will it look in doubting the credentials of Parliament and assuming that all of them were corrupt and against removal of corruption? Team Anna’s game will be over if the Lokpal becomes a Constitutional Body.
To be fair, a lot of the credit for this denouement should go to Anna (but not his team). I have never supported his methods, but always supported his cause. I have also never been comfortable with his team members. They have clear cut political agendas or are at best – cynical beyond redemption. Such people cannot bring about change. To bring about change, you need a positive outlook while still persevering with the agenda. In my mind, it is the dignified, persistent and much less-shrill efforts of Aruna Roy and Jayprakash Narayan (Loksatta) that deserve special mention if the Lokpal is eventually made into a Constitutional Body. Aruna Roy and her NAC will have played a crucial role. Many people call the NAC an extra-constitutional body. These people are advised to study the composition of the NAC – the members of the NAC are far more qualified than members of Team Anna. Besides, the NAC never bypasses Parliament. All the proposals of the NAC go through the routine process – cabinet, Parliament, Standing Committee, back to Parliament…..unlike Team Anna which has scant respect for the Constitution.
The real truth is that the Congress is on a rebound. After the visionary telecom policy announcement yesterday, today’s announcement of the Lokpal set-up shows that the party is shaking itself out of slumber and showing a new determination. It now needs to press ahead with more reforms and pass the many economic bills that are pending for long. That will lift the mood in the country…..and that is perhaps what is needed the most at this time….


  1. Very interesting and insightful, Prashant!

    But, I just smell a fish here - It might be easier for Congress to bypass the Constitutional Body rather than just a bill. If it introduces a regular Lokpal bill, it might be constantly under the purview of Anna and other onlookers.

    If it enacts a Constitutional Body, it comes under the purview of only a few individuals, who will be appointed by the President. They might be safer under the Constitutional Body than under the Lokpal Bill, who knows?

  2. Very interesting and insightful, Prashant, but I smell a fish.

    Perhaps, they feel all the more safer under the lens of a Constitutional Body appointed by the President rather than under the vigilant eyes of Lokpal Bill and Anna's supporters