Legal luminaries from the Opposition and the treasury benches in the Rajya Sabha on Thursday battled it out on the constitutional validity of the provisions of the Lokpal Bill, particularly the clause on the Centre legislating for Lokayuktas in States. This, as it turned out, was a sore point not only with almost all Opposition parties but also with the United Progressive Alliance's ally, the Trinamool Congress.
As soon as Minister of State for Personnel V. Narayanasamy finished his introductory remarks after moving the Bill, Opposition members were on their feet demanding the presence of Prime Minister Manmohan Singh, who is also the leader of the Upper House. This led to a brief adjournment.
Leading the Opposition attack, Leader of the Opposition Arun Jaitley said the Bill would lead to a “constitutional havoc” as the Centre would be encouraged to usurp the powers of the States through the provision for setting up the Lokayuktas.
Terming the Bill “half-hearted legislation,” Mr. Jaitley said the government strategy was to create a smokescreen by saying it was talking to civil society and then suddenly say it would give constitutional status to the Lokpal. “You wanted to create a phoney Lokpal and give it a constitutional status and say it will be a game changer. The game changer will not be a phoney institution but an effective institution.''
Responding to the charge that the BJP did not want a Lokpal law, he said the people of the country would decide which side wanted a weak law and which side wanted “an amended and strong” legislation. “Not only that, this will also be the test for UPA allies — are they only proclaiming or are they willing to strike?''
Charging the government with “assault on the federal structure” and creating a “constitutional cocktail” he said: “If setting up of the Lokayuktas is to be under the Concurrent List under Article 253, there is no provision for an option. First under Article 253 you want to enact a law that will dismantle the entire authority of the States in dealing with their own services. If you have the authority under the Concurrent List, then States do not have the authority. That means the 18 Lokayuktas in 18 States are all ultra vires . Constitutionally, the correct course would be to frame a law under Article 252 after obtaining resolution of two States.''
Objecting to the provisions in the Bill that give powers to government to “control appointments and [have a] removal mechanism,” Mr. Jaitley said there would always be the sword of Damocles on the Lokpal. “If it goes against the government, it can be suspended.”
Pointing out that most people supported social justice and affirmative action, he said the legal phraseology of reservation in the Lokpal was “extra-constitutional'' and designed to make this law “vulnerable.”
While reiterating the BJP's demand for autonomy to the Central Bureau of Investigation, he said Section 25 of the Bill needed to be amended where the power of administrative and financial control, superintendence and direction over the CBI should be given to the Lokpal.
He objected to the inclusion of non-governmental organisations, and other such institutions under the Lokpal, saying the government-controlled, government-appointed authority would be so intrusive that it would enter every area of even private life. “This is a revenge provision against civil society.”
Referring to the “sense of the House” resolution to bring a Citizens' Charter, and Group C and D employees under the Lokpal through a mechanism and creation of the Lokayuktas, he said Group C and D employees were to be under the Lokpal. But the Citizens' Charter (for time-bound implementation of government services) was taken out of the ambit of the Lokpal. “Are we going to subvert the institution before it is born?''
Mr. Jaitley said if the government accepted the amendments given by the BJP and other parties, the Bill could be passed.
‘Don't hide behind excuses'
Abhishek Singhvi (Congress) countered the BJP attack by asking the party if it was keen on passing the Bill. “The fundamental question is: do you want to pass the Lokpal Bill or not? It is no use putting a string of conditionalities. No use saying I want to pass a strong Bill after three months and refer it to the Standing Committee as your colleague (Sushma Swaraj) said in the other House.''
“If you don't want to pass the Bill, say so and have the courage and don't hide behind excuses,” he said adding the BJP was creating a fear psychosis over the issue of bringing NGOs and other institutions under the ombudsman. The provision was to cover trusts and institutions that received public donations and foreign funds above a certain amount.
During the debate, which saw an exchange of words between Mr. Jaitley and Mr. Singhvi, both lawyers, the Congress member rejected the Opposition's stand on reservation, saying the Bill did not have any provision for [extra-constitutional] quota but it only talked about ensuring “representation” to diverse sections of society. This aspect was later contested by the Bahujan Samaj Party and the Samajwadi Party, which wanted the government to clarify its stand.
Rejecting the charge of “assault on federal structure,” Mr. Singhvi said that under the Constitution, Parliament had the power to make laws for the entire country or any part. “Your argument that it is a constitutional cocktail does not have any punch.”
He said the Bill for the first time separated prosecution and investigative powers, abolished the practice of seeking sanction before prosecution of public servants and gave the Lokpal greater control of the CBI even though it did not bring the agency directly under the ombudsman.
Mr. Singhvi said the BJP's opposition to the Bill was just to score brownie points with an eye on the coming Assembly polls.
