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Why 'eminent jurists' want nothing to do with the Lokpal

Rubber stamp Lokpal, argues Kian Ganz
Rubber stamp Lokpal, argues Kian Ganz
The fact that a Lokpal bill did get passed at all, should give pause for thought.

It's no coincidence that every attempt to create a predecessor to the current Lokpal has failed, starting after MC Setalwad first floated the idea in 1962, to 1969 when it cleared the Lok Sabha but failed to pass the upper house, to nearly a dozen other aborted attempts in subsequent years.

Governments love to govern, and the judiciary, CBI, CVC and others are already pesky enough to deal with for the powers that be on a daily basis, while limiting the fallout to coalitions and venerable party members. No government in its right mind would therefore openly welcome a new way they - and the work of its servants - can be attacked and embarrassed (a notable exception being a party in its infancy that doesn't yet carry much historical baggage of corruption and governance, and whose initial manifesto barely extended beyond the word Lokpal itself).

As such it was always obvious that whatever parts of a Lokpal Bill made it through the legislature, would be severely diluted from the original drafts that were pushed by Anna Hazare & Friends, who dared the creation of an omnipotent super bench but risked upsetting delicate constitutional balances that have taken decades to find their uneasy equilibrium.

Likewise, there is every possibility that the Lokpal will get buried so quickly in paperwork and pending complaints that it'll become one more forum where the familiar game of tareekh pe tareekh is played.

That said, the Lokpal in its current form does not necessarily have to be toothless and a waste of time, it just means that our expectations will have to adjust to what the reality will likely be.

There are plenty of bodies in India that can (and do, occasionally) crack down on corruption and administrative malfeasance. But many are arguably dogged by excessive formality, such as the courts, or by the potential for nepotism and convenient hush-up-jobs, as can be the case with the internal complaint procedures of administrative departments.

The Lokpal, as an independent and apolitical body with an easy-going approachability and wide powers of investigation, ticks those boxes, at least in spirit.

The trouble is that whoever you put into the Lokpal will occupy a unique position and potentially wield more practical power with fewer checks and balances than most Chief Justices of India do (a position one usually reaches only after decades of hard work, a flair for bench politics and very fortunately timed birthdays).

And once you're sitting in the Lokpal, short of your five-year term running out or your turning 70, your tenure is pretty much guaranteed (unless someone manages to push past the Supreme Court a reference by the president and 100 members of Parliament – a scenario so remote in practice it won't happen except in the most blatant cases of misconduct in your shiny new Lokpal office).

Therefore, who will have the power of bestowing ombudsman- and woman-ship, will lie at the heart of whether and how the Lokpal will work. It is also one of the more fundamental differences between the central government's Lokpal, and the Aam Aadmi Party's Jan Lokpal Bill: the former reserves far more space on the selection committee for the voices of politicians.

The Lokpal's obvious politicisation was exemplified in the statements of the BJP's Lok Sabha opposition leader, Sushma Swaraj, who was outvoted by the rest of the selection committee in her reservations (putting it mildly) against senior counsel PP Rao becoming part of the committee; she  described Rao as a “Congress loyalist”.

Most worryingly, the politicians have quietly managed to hijack, nearly end-to-end, the entire appointments pipeline as the two “eminent jurists” who resigned from the “search committee” have recently found out.

The search committee's job is to act as a candidate-feeding and -screening mechanism to the selection committee. But according to the rules, the initial long list the search committee will scour is provided by the government's Department of Personnel and Training, which will pick out whom they deem are the most deserving candidates that applied for the post. 

Last week, senior advocate Fali Nariman was the first to decline to take part in the search committee, quickly followed by former Supreme Court judge KT Thomas who, after speaking to Nariman and looking at the wording of the rules, agreed that their job looked less 'search' and more 'rubber-stamp'.

“I do not consider it worthwhile,” wrote Thomas in his resignation letter, “to … spend many days to make a panel from the list forwarded by the … Central Government”, adding that “the requirement of seeking applications from persons to be considered as members of Lokpal... would deter many deserving persons being brought within the ambit of consideration”.

Nariman, all the elder statesman of the bar that he is, was a little more diplomatic in his letter of regret to the PM: “In my humble view this is no way in which an institution as vital and as important as the Lokpal [should] be constituted.”

It's pretty obvious that procedurally the current mechanism to choose Lokpal members just doesn't make any sense, at best. At worst, it was intentionally crippled in its long democratic passage.

Civic duty might have caused Nariman and Thomas not to object when agreeing to take part in the Lokpal circus in the first place. But more than just a feeling that they're wasting their time, the tipping point for them must have been the realisation that their mere presence in the search, even if only nominally, would have given legitimacy to a deeply flawed process, which they would have had very little control over.

At its heart, Nariman's and Thomas' withdrawals bely the reality that if the selection process can not make a truly independent search for members, the Lokpal risks devolving into just another tribunal where every five years a new set of bureaucrats and judges are retired to (if they play their cards right and don't upset the political masters).

If that were to happen, the biggest shame would be the time that politicians have wasted on arguing, drafting and re-drafting a bill that we could have all done without.

A shorter version of this article was first published in the Deccan Herald yesterday.

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