Without constitutional status, it can be scrapped in one stroke if the ombudsman proves inconvenient to any government
With the proposed Lokpal law failing to get constitutional status, there is a danger of its being repealed in one stroke by an ordinance if the institution proves inconvenient to any government in future, feel former Chief Justices of India and other eminent constitutional experts.
If the Lokpal law were given constitutional status, it could not be repealed as easily as any other piece of legislation. For, even for repealing the law with constitutional status, it would require a two-thirds majority of the members present and voting and at least 50 per cent of the total members voting in favour of the amendment, say the experts.
The former CJI, Justice V.N. Khare, cited two instances of Lokayukta laws in Punjab and Haryana having been repealed in quick succession as the then governments felt embarrassed when some inconvenient questions were asked by the Lokayuktas.
By an ordinance, these bodies were scrapped and the Lokayuktas asked to vacate their bungalows immediately. “I am giving these instances only to show that when somebody in power wants to act smart and throw away the legislation, it can be done by an ordinance and later a Bill to repeal the law can be passed by a simple majority,” Justice Khare pointed out.
Conferring constitutional status on the Lokpal, like it was done for the Election Commission, would lend the institution greater autonomy and power rather than making it a statutory body, he said.
Asked whether the government could bring in another amendment in the next session and confer constitutional status on the Lokpal, Justice Khare said: “In such matters, there is no estoppel and government will be free to bring in another amendment within six months.”
Another former CJI, Justice J.S. Verma, agreed with Justice Khare and said: “It is beyond one's comprehension that political parties want a strong Lokpal but at the same time did not want to give constitutional status to it. Everyone knows that constitutional status is higher than statutory status, but still if they oppose, I will only say it is a political decision.”
Justice Verma said: “This Lokpal Bill even if it is made into a law can be repealed by a simple majority if the government of the day feels there is no need for such an institution.” Asked whether the government could bring in another amendment, he said: “There is no res judicata [no finality] in this case and government could bring it in the next session. There is no point in waiting further.”
The former Attorney-General and senior advocate, Soli Sorabjee, felt that though constitutional status would give the Lokpal a higher position, the present Lokpal Bill, if it was passed in Rajya Sabha, could enjoy the same powers. Lack of a higher status would not undermine its credibility or authority. “The government is not barred from bringing in another amendment to confer constitutional status on the Lokpal in the next session if it feels so.”
Senior advocate Rajeev Dhavan said: “Like any other law, Lokpal law can be repealed by a simple majority. The real danger is Lokpal law is not immune from such threat.”
Describing Tuesday's event as ‘red herring,' Mr. Dhavan said: “The government's response seems to be — ‘we wanted to make the Bill strong, but the Opposition did not let us do'.”
On the clause that said funds for State Lokayuktas would be provided from the Consolidated Fund of India, he asked: “How can the Centre impose something on the States. Only the State Assemblies concerned can impose such a provision. If this clause is allowed to remain it will impinge on the financial federalism of the States, whose autonomy will collapse.”