Lokpal vs the constitution

Disrupting the basic framework


Manoj Kumar | June 28, 2011

The Constituent Assembly and late Dr BR Ambedkar worked tirelessly to give shape to the Indian constitution promising us liberty, equality, rule of law and peaceful existence. The constitution was made to be a self-contained document setting out the fundamental rights, the directive principles of state policy, the constitutional plan for the separation of powers amongst different organs of governance and a structure to safeguard and preserve liberty and equality.

The basic features set out in the preamble and the fundamental rights enshrined in the constitution guarantee equality before law and equal protection of law, constitutional supremacy, democratic form of government and separation of powers to one and all. The protection of basic features and fundamental rights under the constitution followed similar guarantees to fundamental rights and civil liberties under the constitutions of USA, UK, France, Germany and the erstwhile USSR, to name a few.

The constitution accordingly mandates the state to ensure fulfilment and safeguard of the said fundamental rights and does not allow the basic features and structure of the constitution to be altered, directly or indirectly.

Discussing the doctrine of basic features in the M Nagaraj case (2006), the supreme court observed that the doctrine of basic structure has essentially emanated from the German constitution. Therefore, we may have a look at common constitutional provisions under German law which deal with rights, such as, freedom of press or religion which are not mere values, they are justiciable and capable of interpretation. The values impose a positive duty on the state to ensure their attainment as far as practicable. The rights, liberties and freedoms of the individual are not only to be protected against the state, they should be facilitated by it. They are to be informed.

Overarching and informing of these rights and values is the principle of human dignity under the German basic law. Therefore, axioms like democracy, reasonableness, social justice etc. are overarching principles which provide linking factor for principle of fundamental rights like Articles 14, 19 and 21. These principles are beyond the amending power of the parliament. They pervade all enacted laws and they stand at the pinnacle of the hierarchy of constitutional values. The theory of basic structure is based on the concept of constitutional identity. The basic structure jurisprudence is a pre-occupation with constitutional identity. In KesavanandaBharatiSripadagalvaru and others v. State of Kerala and another  (1973), it has been observed that "one cannot legally use the constitution to destroy itself". It is further observed "the personality of the constitution must remain unchanged". Therefore, this court in KesavanandaBharati, while propounding the theory of basic structure, has relied upon the doctrine of constitutional identity. To destroy its identity is to abrogate the basic structure of the constitution. This is the principle of constitutional sovereignty. The main object behind the theory of the constitutional identity is continuity and within that continuity of identity, changes are admissible depending upon the situation and circumstances of the day.

Further, constitutionalism is about limits and aspirations. According to Justice Brennan, interpretation of the constitution as a written text is concerned with aspirations and fundamental principles. In his article titled 'Challenge to the Living Constitution', Herman Belz says the constitution embodies aspiration to social justice, brotherhood and human dignity. It is a text which contains fundamental principles. Fidelity to the text qua fundamental principles did not limit judicial decision making. The tradition of the written constitutionalism makes it possible to apply concepts and doctrines not recoverable under the doctrine of unwritten living constitution.

We are blessed with a constitutional form of government and our constitution provides for separation of powers amongst the various organs. The legislative powers, the executive powers and judicial powers are separately mandated for the legislature, the council of ministers and judiciary at both, the central and the state levels. The separation of powers also provides checks and balances and accountability of these organs inter-se to enable a democratic form of governance.

We have had several judgments from the supreme court setting out above that the constitution constitutes the fundamental law of superior obligation and the basic features of the constitution, including those set out above, cannot be changed by ordinary law. The GolakNath Case (1967) to the present to the present M Nagaraj judgment (2006) the supreme court has cautioned against the basic features of the constitution being over-reached and has observed that basic features consisting of constitutional axioms like constitutional supremacy, and democratic form of government, secularism, separation of powers etc.  An 'axiom'  is a self evident truth and these cannot be amended or overreached.

We are now confronted with the virus of corruption inflicting the governance in India and are faced with  a thought of setting up a body called Lokpal to deal with complaints of corruption against members of council of ministers, members of parliament. Some want even the prime minister and judges to be brought within the purview of Lokpal, thus overreaching the basic features of the separation of powers and accountability set out in the constitution.

The constitution provides for balance of power and accountability amongst the three organs of governance – legislature, executive and judiciary.  Lokpal is neither and as such does not stand a place in the basic structure of the constitution unless the basic structure itself is shaken up to accommodate a draconian body only having an oversight over all and accountable to none.

The constitution provides the following functions to be discharged by the three organs to ensure safeguard of life, liberty and peaceful existence of its citizens:

Independence of judiciary to be maintained at all costs to enable the judiciary to act as a watchdog and quash any executive or legislative action in violation of fundamental rights;

Constitutional guarantee of rights to be ensured by executive and legislature in the governance of the country;

Rule of law, equality before law and equal protection of law to be delivered to every citizen of the country by the executive which is answerable to the legislature in this regard;

Legislating and law making to be done by the legislature as per the popular mandate given by voters representing majority on first past the post basis;

Separation of powers amongst the three organs to ensure complete accountability of actions and execise of powers amongst these organs;

Decentralisation of power at various levels i.e central, state and local bodies to ensure participative governance and avoid concentration of power.

The Lokpal as proposed, seeks to negate each of the above basic features of the constitution without even being a legitimate child of the constitution. The proposed law seeks to disrupt the balance of power, separation of powers, accountability of the constitutional organs of governance apart from over-reaching the democratic fabric of the constitution which provides power to direct law making and seek accountability to the voters through popular franchise.

To avoid creation of endless bodies behind every office exercising any power, our fore fathers provided for the inter se accountability amongst various organs under the constitution. Lokpal seeks to selectively takeover some of those powers and take it upon itself without being accountable to anyone. Do we then need a Lokpal II to make the Lokpal accountable and then a Lokpal III to make the Lokpal II accountable and so on and so forth?

Law-making and policy, otherwise reserved for the citizens of India through popular mandate and manifestos in addition to accountability of the party in power to the people is now being sought to be replaced to vest in the hands of a few self perceived representatives of the 'civil society'. Does that leave the society at large voting at every election for regime changes uncivil or incapable of application of mind? To make it worse, our Lokpal neither needs to obtain popular sanction or validation of its actions nor be answerable to anyone. Corruption is possibly plaguing every nook and corner of this country – but does the answer lie in allowing a few to ride on the frustration of people to usurp unaccounted power and defeat of constitutional framework or does the answer lie in debating this and making it an issue in every manifesto going to the people for votes?

The proposed LokpaL, if made a reality in any form, will result in defeating the fundamental right of a democratic governance, independence of judiciary, de-centralisation of power and accountability apart from disrupting the basic structure of the constitution. The proposal therefore deserves to be thrown out of the nearest window.



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