Karan Thapar: As a former chief justice of India, should the higher judiciary be brought under the ambit of the Lokpal or would that be a mistake?
JS Verma: That would be a mistake.
Karan Thapar: Why would it be a mistake?
JS Verma: It will foul with the basic structure of the Constitution.
Karan Thapar: Explain to me why you believe bringing the judiciary under the Lokpal would breach the basic structure of the constitution?
JS Verma: Judicial review is a basic feature, part of the basic structure for which an independent judiciary is essential and the Constitution treats the higher judiciary separately, rather the whole of it. Article 50 separates, rather mandates separation of judiciary from executive. The subordinate judiciary is also subdued to control only of the higher judiciary. Article 235 and Article 124, sub article 5, provides for a separate law to be enacted for dealing with proven misbehaviour of the High Court and Supreme Court judges.
Karan Thapar: So what you're saying is that if the judiciary were brought under the ambit of the Lokpal, judicial review would be affected and undermined?
JS Verma: Certainly. It would be.
Karan Thapar: And if judicial review is undermined, would the independence of the judiciary also be adversely affected?
JS Verma: That is directly connected with it. The judiciary under the Constitution is the custodian of the rule of law which is the bedrock of democracy. So ultimately the democratic structure would be affected.
Karan Thapar: And if the independence of the judiciary is affected, then does that mean that the separation of powers which is intrinsic to our Constitution would also be damaged?
JS Verma: Directly, which is actually expressly mandated separation of powers in Article 50.
Karan Thapar: So are you absolutely sure that what you describe is a cascading damaging effect and an adverse effect on the constitution would follow immediately if the judiciary is brought under the Lokpal, you're absolutely sure of that?
JS Verma: I'm absolutely sure of that.
That had to do with my misgivings with the Lokpal Bill. The people are so eager to give a certain group of people enough power to prosecute corrupt officials that they conveniently overlook the implications of such empowerment, especially when its institution is undemocratic. It's not that the Lokpal Committee is going to be unaccountable - I can't predict the future - but it's that even if they're going to be fully accountable, they're going to cause problems to the existing institution. In simpler words: how can a country have two governments (irrespective of how they're positioned and supported)?
The second problem is what's being called the circularity of authority: a member of the Lokpal Committee gets to file a case as well as determine its fate. If you produced a product and went to the market with it, would you be comfortable and satisfied knowing anyone can buy it and he who buys it also determines its price?
Karan Thapar: Should [the judiciary] be under the ambit of the Lokpal? Many people believe that the government is against it. Is that the case? If so, why?
Kapil Sibal: First of all, let's be very clear. I think we should have a law. Whether it’s the Lokpal or some other law, under which the judicial accountability, which makes the judiciary accountable not in the present form but in a different way.
Karan Thapar: That everyone accepts.
Kapil Sibal: So we all accept that. Now the question is should it be under the Lokpal or should it under the judiciary accountability?
Karan Thapar: What is your answer?
Kapil Sibal: My answer is that it should not be under the Lokpal.
Karan Thapar: Why?
Kapil Sibal: I tell you, I tell you a fundamental reason. Let’s assume the Lokpal has control over the judiciary in terms of investigation and prosecution and assume in a given case the prosecutor of the Lokpal files a case against an accused and the judge doesn’t agree with the Lokpal on that particular case. Both in the terms of substance and even on bail. The judge will always be worried that I will be investigated by the Lokpal if I disagree.
Karan Thapar: So it will be a factor of intimidation?
Kapil Sibal: No, it is against the substratum of all we stand for.
Karan Thapar: Plus there is circularity of authority.
Kapil Sibal: Yeah, you can’t give that power of judiciary, when the judiciary has to be independent of every authority.
Karan Thapar: So this is a good reason why the judges needs to come under a separate bill, not the Lokpal.
Kapil Sibal: Not the Lokpal because the prosecutor will control both the charge as well as the fate of the case and the judge will be worried.
Now, the following is from his interview of Aruna Roy, a civil rights activist, etc., who wants the PM to be brought under the purview of the Lokpal Bill. I believe she lost her case the moment she conceded that some specific duties of the PM, like those concerning defense, etc., will have to be excluded. At that point, the definition of the Bill and its powers becomes vague and deliberately defined and no longer retains a strength necessary to withstand comprehensive judicial review.
Karan Thapar: Should the Prime Minister and his office be part of the jurisdiction of the Lokpal bill?
Aruna Roy I definitely think so, because the Prime Minster heads many ministries, apart from being the head of the government. So I do not think as the head of the Executive, he can be, there can be some checks and balances of course, but I can not envisage Lokpal Bill leaving the Prime Minister out.
Karan Thapar: What about the argument put forward by two Chief Justices of India, Justice Verma and Justice Venkatachaliah, the Prime Minister is the head of the government, if he becomes dysfunctional, the government will collapse, and secondly, he's the international face of the country. For both these reasons, they argue, the Prime Minister should be exempted from the Lokpal.
Aruna Roy: I don't think that the Prime Minister can be exempted from the purview of the Lokpal bill, but certainly some aspects of his work, which may in fact deter or delay or stall activities, one can examine and look at. Unfortunately, in all these issues, the public and people concerned have not really looked at the details. And the devil always lies in the details!
Karan Thapar: What are the sort of aspects of his work that you think could be excluded?
Aruna Roy: Maybe some dealing with security, maybe some dealing with other issues which will one have to look at the entire list of what he does and then look at what we can keep in and what we can't.
Karan Thapar: What about a further check, that although the Prime Ministers office are within the purview of the Lokpal, investigations cannot be undertaken without getting the concurrence of an entity like the Speaker of the Lok Sabha. Would you approve of that?
Aruna Roy: If we bring in prior sanction, then we enter into another domain, and even that will have to be examined and I don't quite agree with that sanction being needed. Especially in a case of corruption.
Karan Thapar: So, no prior sanction, but there can be certain areas like national security, which are excluded?
Aruna Roy: Yes, and some others. We will have to have a look at the list of his functioning.
Karan Thapar: In other words, your taking a position that was suggested by Pranab Mukherjee in his letter to the chief ministers, where he said yes but with exclusions?
Aruna Roy: There will be some but not all exclusions and what will be excluded maybe a matter of big debate.
On an extended note: the PM's duties are not defined exclusively for various offices, or even if it is argued that they are, the PM's accountability is limited to the Constitutionally mandated responsibilities and not what he/she chooses to address by way of the powers vested in him/her by his/her office. Therefore, the two courses of action are to integrate the structural and functional definitions of the Lokpal Committee with the whole of the government or to let it exist separately and not attempt to supervise the PMO or the judiciary. The dangers of the former are expostulated by Verma in the second part of his interview with Thapar:
Karan Thapar: Let's then come to two other issues that have been in the news. First, should the Prime Minister come under the ambit of the Lokpal?
JS Verma: I don't think so. The Parliamentary democracy that we have adopted as the system, there the Prime Minister should be accountable only through Parliament.
Karan Thapar: What about making the Prime Minister accountable to the Lokpal but with certain exclusions such as national security or defence?
JS Verma: As a matter of fact, so far as the ordinary law is concerned, that applies to the Prime Minister in any case for offences under the general law. But then so long as he retains the majority in the House of people, he is bound to remain the Prime Minister.
Karan Thapar: In fact Prashant Bhushan and Anna Hazare's team might turn the argument you've just given me on its head by pointing out that if the Prime Minister can be covered by the ordinary law, if he can be covered by the Prevention of Corruption Act, why shouldn't he be covered by the Lokpal?
JS Verma: The simple answer is that if he is covered in this respect by the ordinary law, you don't need a Lokpal to cover him on those things, and for the other things, you can't have a lame duck Prime Minister, because there's no provision for President's rule at the Centre.
Karan Thapar: Okay, I understand the point you're making, others may disagree with it, what about then MPs, specifically in terms of what they do or say, their speeches or their voting in Parliament, if the shadow of corruption falls over those activities, should that come under the Lokpal?
JS Verma: So far as I am concerned I'm clear that the Tiananmen bribery Supreme Court judgement needs to be overruled, that's absolutely wrong. But then so far Article 105 relating to Parliament and 194 relating to state legislatures are concerned, they clearly provide for privileges to be codified, and so far as their conduct inside the House is concerned, that is subject to provision and, therefore, that should not have any outside body. Even the judiciary's intervention is limited in that.
If you are going to have an institution, A, that provides for the choice of the people to be translated into a government that reflects a "national opinion", and then if you are going to have judiciary, B, that is the custodian of the law and delivers due justice based upon the processes of a judicial review, and if there is a Parliament, C, that, via its utilization of the provision for a political debate, is empowered to amend existing laws, how is it sensible to have a Lokpal Committee that towers above A, B, and C, that doesn't have the provision for the majority to be represented, and seeks to be allowed to file a case and then prosecute it itself? And even if the Committee allows for the majority to be represented: why have something like the parliamentary elections in a Universe that already includes the parliamentary elections?
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