‘Constitutional body is the key to having a strong Lokpal’

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Justice JS Verma, Former CJI

Former Supreme Court Chief Justices MN Venkatachalaiah and Jagdish Sharan Verma have drafted a constitutional amendment that proposes the Lokpal be set up as a constitutional body on the lines of the Election Commission. In a chat with Kunal Majumder, Justice Verma says that this will bring about a stronger Lokpal.

Edited Excerpts

Legal eagle Justice JS Verma
Legal eagle Justice JS Verma
Photo: Abhinandita Mathur

Both Law Minister Salman Khurshid and Rahul Gandhi want Lokpal to be a constitutional body. Having drafted the amendment, tell us how different it is from the current version of the Bill?
An ordinary statute can be changed by a simple majority in Parliament. If political equations change, the Lokpal will certainly be more vulnerable. So the obvious advantage of having a body set up under the Constitution is that tinkering with it becomes difficult. That is the key to having the strongest Lokpal.

Team Anna and the Opposition say the process of constitutional amendments is a long-drawn one. Won’t it further delay the Lokpal creation?
That argument stems from ignorance that this will require ratification from states. Article 368, which provides for amendment of the Constitution, says that constitutional amendment (sub-article 2 of 368) is possible with a simple majority of two-thirds of the House present and voting. This amendment can be made even in one day, because all political parties have said they are committed to it. What ultimately matters is the voting in Parliament. With the last session of Parliament also passing a unanimous resolution, getting two-thirds majority should not be a problem.

Would the constitutional amendment be enough? What about the details of the Lokpal Bill that has seen a sharp divide and a lot of debate?
The draft that I have given (to the Standing Committee) does not contain anything contentious. The debate on the contentious issues doesn’t arise at this level. If you only make a constitutional amendment declaring the mandate to create a Lokpal at the Union level and Lokayuktas at the state level, and don’t put anything contentious, then there is no problem.

Other bodies like State Human Rights Commissions have to be formed under constitutional mandate. But many states haven’t done it. What is the guarantee the states will appoint Lokayuktas?
For better protection of human rights, Parliament made an Act under Article 253, which provides for a National Human Rights Commission and the SHRCs. But it does not say ‘shall’. The word used is ‘may’, which is why many states have not made any such commissions. But in Section 329 (D) of my draft, it says “there shall be Lokayukta for the government for every state”. So there is no option for the states not to have such an institution.

Are you in favour of centralised legislation?
Parliament should legislate this to have a uniform law throughout the country. State laws about Lokayukta are of all kinds around India. There’s no uniformity. The state government will only be responsible for making the appointment. Function will be in a uniform law.

Much has been said about bringing the PM and judiciary under the purview of the Lokpal. But who will the Lokpal be answerable to?
The Lokpal will be answerable to the Supreme Court. That’s why the apex court can’t be under it. Even to a high court, because the high court has this jurisdiction under Article 223.

What about the method of selecting the Lokpal?
I’m not asking the government to commit to my method. These issues can be discussed later. But they shouldn’t stop the creation of Lokpal as a constitutional body. Once it becomes a part of the basic structure on incorporation into the Constitution, it can’t be amended.

Kunal Majumder is a Senior Correspondent with Tehelka.
kunal@tehelka.com

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