Is the Bill within the legislative competence of Parliament? Yes.
All provisions in Anna Hazare's Jan Lokpal Bill are within the legislative competence of Parliament, including the provisions relating to Lokayuktas in the States. Some confusion is being spread in the media that Parliament cannot enact all the provisions of the Jan Lokpal Bill, particularly those relating to the Lokayuktas in the States, a law for which will have to be enacted by the State Legislatures themselves. Any constitutional jurist would confirm that there is no substance in this impression and that Parliament is fully competent to enact all the provisions of the Jan Lokpal Bill.
Parliament can enact any law if the “pith and substance” of that law is covered by any entry in the Union List or any entry in the Concurrent List. Entry 97 of the Union List is as follows: “Any other matter not enumerated in list 2 or list 3 including any tax not mentioned in either of those lists.”
The effect of this is that unless the pith and substance of the Jan Lokpal Bill falls squarely under any of the entries in the State List, Parliament cannot be denied the legislative competence to enact the provisions of the Jan Lokpal Bill. Even a student of law would tell you that the pith and substance of the Jan Lokpal Bill does not fall under any entry in the State list.
One of the entries in the Union List is entry No.14: “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.” Article 253 provides that “Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” The effect of Article 253 is that even if the pith and substance of an Act is squarely covered by an entry in the State List, even then if the enactment is for implementing a U.N. Convention, Parliament would still be competent to enact the legislation.
As the statement of objects and reasons of the Jan Lokpal Bill would show, the object of the Jan Lokpal Bill is to implement the United Nations Convention on Corruption, which has already been ratified by India (http://www.unodc.org/unodc/en/treaties/CAC/index.html).
The definition of “public official” in the U.N. Convention includes any person holding a legislative, executive, administrative, or judicial office, whether appointed or elected. This is quite similar to the definition of “public servant” in the Prevention of Corruption Act, 1988, enacted by India's Parliament, which covers all Ministers including the Prime Minister, all judges of the High Court and the Supreme Court as well as all elected Members of Parliament and State Legislatures. Incidentally, it may be mentioned that the Prevention of Corruption Act was enacted by Parliament and not by any State Legislature, even though it is applicable not only to Central government servants but also to servants of the State governments. The main object of the Jan Lokpal Bill is to set up an independent authority as required by the U.N. Convention to investigate offences of corruption by all public servants covered by the Prevention of Corruption Act, 1988.
Entry 1 of the Concurrent List refers to criminal law, including all matters included in the Indian Penal Code. As bribery and corruption were covered by the Indian Penal Code, Parliament had full competence to enact the Prevention of Corruption Act.
Entry 2 of the Concurrent List relates to criminal procedure, including all matters included in the Code of Criminal Procedure. Since the investigation of bribery and corruption was included in the Code of Criminal Procedure, Parliament is fully competent to enact a law to provide for alternative methods of investigation of offences under the Prevention of Corruption Act.
Article 8 (2) of the U.N. Convention requires each state that is a party to the Convention to apply, within its own institutional and legal systems, codes or standards of conduct for the correct, honourable, and proper performance of public functions.
Article 8 (5) further requires the states to establish systems requiring public officials to make declarations regarding their outside activities, employment, investments, assets, and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.
Article 8 (6) further requires the states to take disciplinary or other measures against public officials who violate the codes or standards established in accordance with the convention.
Article 12 (2) requires the taking of measures for preventing the misuse of procedures regulating private entities, including procedures regarding subsidies and licences granted by public authorities for commercial activities. It further requires the imposition of restrictions for a reasonable period of time on the professional activities of former public officials after their resignation or retirement, where such activities of employment relate directly to the functions held or supervised by those public officials during their tenure.
Article 34 of the Convention requires the states to consider corruption a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument, or take any other remedial action. It would be crystal clear to any constitutional jurist that even if the Jan Lokpal Bill had not been for the purpose of implementing the U.N. Convention, all its provisions would be squarely covered by the Union List and the Concurrent List.
While one can understand the anxiety of political parties to somehow attempt to dilute the provisions of the Jan Lokpal Bill by reducing its coverage or to weaken it, they owe it to the people of India not to mislead the gullible people that Parliament is not competent to enact the provisions contained in Anna Hazare's Jan Lokpal Bill. Even the claim that at the least the States are required to be consulted has no basis at all. The Constitution-makers had foreseen that in a federal or quasi-federal country, the States' views had to be taken into consideration by Parliament when enacting a law. They had, therefore, provided for the Council of States and a Bill cannot be enacted by Parliament unless it is passed both in the Lok Sabha and the Rajya Sabha. The constitution of the Rajya Sabha provides that each State elects its representatives to this House. Thus all States are represented in the Rajya Sabha. The MPs in the Rajya Sabha are there to represent the views of the states on any Bill that comes before it and there is thus an inbuilt mechanism in the Constitution itself to provide for taking into consideration the views of the States on a Bill that is being enacted by Parliament.
(Shanti Bhushan, a constitutional expert, is a former Union Law Minister and member of the Joint Drafting Committee on the Lokpal Bill.)
Keywords: Anna Hazare arrest, Tihar Jail, Anna Hazare fast, Jan Lokpal, anti-corruption movement, India Against Corruption, civil society, Parliament session
India is the only country which has surfeit of laws and no implementation. If PCA is there to check corruption what can Janlokpal do? Yet I am for Janlokpal bill out of sheer frustration that something will help bring the culprits to book for looting India.
the jan lokpal bill is designed for the good of life and thus it must be powerful enough to enable society to change over to a normal way of life.so, i'm with Anna hajare.
Will jan lokpal end corruption in india??It is only machanism to punish the guilty who are caught.What those about who are not caught? Where there is mutual approval of giving and taking bribe.Remember that large part of bribe givers are happy. we should know that "bribe offer is higher than bribe demand.
Modern civilization is corrupt to the core. Thus when rules of the act are framed, modern civilization itself must be questioned and if found corrupt must be changed within the constitution. For example nuclear power programmes are unconstitutional being a part of modern civilization. The Jan Lokpal Bill is designed for the good of life and thus it must be powerful enough to enable society to change over to a normal way of life.
Ms Kavita raises perceptive questions; although they have been asked before. Perhaps items to ponder are: Should any Anti-corruption Law have (1) the long-term focus on prevention, (2) medium-term focus on reducing opportunity through systemic and procedural changes (3) immediate-term focus on (i) deterrence (ii) dispensing ‘justice’ through investigation, recovery, restitution, and ‘measured’ punishment? Should careful consideration be given, so that Indian society is not torn apart, to (a) amnesty (b) time-barring (c) not excessive sentencing for ‘past’ deeds (when the punishment was not known)? With any law there is always the question of whether it is fair to make it retrospective. In this case if previous similar laws existed, could they provide some guidance? Is it crucial that citizens do not feel persecuted, and that emphasis remains on healing and reconciliation, and changing things for the future? May Indians live in peace and may all citizens prosper.
I appreciate the argument of Mr. Shanthi Bhushan. There is substance in it.The sentiments of the general public is that there must be a corruption free society.
Technically Mr. Shanthi Bhushan is right with respect to Rajya Sabha that this upper house represent the States to protect the federal concept of India. But, what is the reality? The ruling political party/parties decide how the law is to be enacted. While exercising the parliamentary wisdom either in lok sabha or rajya sabha the whip of the political parties in power decide. So the real question is the political issue. The movement should address the cardinal political issue rather than focusing the issue of enacting an abstract enactment for a stringent law.
Another question is that whether our Constitution provides for the discussion of the International treaties and Conventions in Parliament for its adoption.In the absence of such a provision is it not a mockery that we must enact laws for treaties and conventions?
Mr Shanti Bhushan is not giving the full Picture. Anti-corruption Act even if included Judge, it technical at the most can only investigate a Junior Judge of a district/city court. That is because this law requires the investigating officer to be higher rank than the officer on whom being investigated. This check allows Courts to function with a lot of independence. But whereas, the Janlokpal taking the status as equivalent to High Court and can even prosecute a supreme court Judge is very dangerous.
The article by Sri shantibhushan is educative and timely. The whole problem is that how many of our elected MPs and MLAs have time to read,understand,and boldly express their views.They are not able sell themselves in the public as they failed to have national mindedness and instead have only Party mind only. The main reason being absence of individual morals and collective public ethics.
After the Janpal bill and few other election reforms,it would be very difficult for the present generation of politians to get re-elected. The political parties too are required to get moderenised in respect of knowledge and skill and approach to problems.Let us expect Good lokpal bill.
Mr. Shanthi BUSHAN, in his inimitable style and clarity has told the right things and things right. To a lay man the details given may appear complex. Mr. BUSHAN has given the right way to understand the complexity simple by mentioning the reasons for the representation of State members in the Rajya Sabha. The Lok sabha has the directed elected members. The job of these members is to represent the States and participate in the making of the required laws. The only exception lies when the statutory nature of the STATE will be the subject matter. In other words if the status of a Union territory needs to be changed or a STATE`s division needs to be changed, only in this specific matter STATE and UT have to enact the necessary rulings and transfer the same to the center for making it a LAW. Things are crystal clear as for as the adoption and creation of lok pal and lokayutas. Talking on political will, it is the will of the people alone that counts. What is so strange is the fact that the lawyers in the opposition talk other things than voicing the points as described by Mr. BUSHAN. The only solid reason for the timidity of these elected people is their fear to dig their own trap by enacting the Lokpal bill. Making it a constitutional body can be done subsequently or in parallel. Only peoples` joint pressure on the government can make this happen. For this people need to be educated. News papers and TV media have important roles to play. Instead of conducting a debate whether Mayawati sent her flight to fetch her shoes, it will be a service to the nation if they can conduct awareness debates in simple language. Regional press and the regional Medias have to organize the same in their vernacular languages. The local elected members must participate in these programs and make their commitment to voice the will of the people. It is also a fact that 75% of our parliamentarians are honest people. When both the people and the commitment of local MPs join hands the resistant 25% will have to listen and abide. Parliament is supreme, though, the will of the majority of people is superior to the supreme.
The government's intention seems to be to scuttle the 'Jan Lokpal Bill' by claiming that Parliament is not competent to consider and pass the Bill, the claim, that has been clearly and unequivocally demolished by Shanti Bushan in the above article. If there ia will there is a way but the government for its own extraneous reasons find it rather difficult to subscribe to the views of the 'Civil Society' in enacting an efficient and effective 'Lok Pal'.
My question is this: Are our law-makers really going to make a law that will result in their own jailing or hanging? Are we not asking them to make a law to punish themselves for things which they have been doing? Do you think they are going to do it?
I agree with the author that the the Parliament is competent to enact law for setting up state lokayuktas. Previous Lokpal Bills including the one introduced by NDA Govt. in 2001 had similar provisions. At max the bill would require ratification by more than half of the state legislatures for it to become an act.
As mentioned by Mr Yogesh before me, that its the political will of our "representatives" that is hindering the introduction of Jan Lokpal and not the constitution. So the question is should our laws and administration be shaped based on what suits the current political scenario or should it be based on what is right. If the constitutional drafting committee had thought of the social status quo of the time of independence while giving us the constitution could it be just towards the dalits,minorities etc ... No matter who comes to power, the constitution stands for what is right. And if it has no objections for Jan Lokpal to be setup and if the MPs agree there should be no contention for passing of Jan Lokpal bill. The article clearly shows as to where the problem is, when it comes to bringing rightful legislation. Its our 'representative's" will and not our constitution.
Well the point mentioned by Mr. Bhushan do find resonance in the ongoing Lok Pal bill debate . I hope the views are read by Standing committee and the parliamentarians alike so as to stop misleading the masses by coming up with new problems every now and then .Now regarding the federal system , As mentioned by Mr. Bhushan I would like to remind that Prevention of corruption act covers even the state level public servant .If the debate was regarding state and central power .Why was not this problem raised in 1988 .As I see it corruption is a universal phenomenon which requires universal law .Lokayutas formation should be done on the guidelines given by the center bill .I do not think there should be any problem to do that.
Whether or not the provisions of Anna Hazare's bill lie in the perview of the constitution is not the question disturbing the law makers' minds presently. Being targeted first after the implementation of the bill is why they seek to get away with it.
I am in complete agreement with Mr. Shanti Bhushan. Philosophically,"Justice System"becomes essential&mandatory-when ethical&moral systems fail. Ethical people are basically honest and sincere in their thought,word and deed (called integrity)-but the unethical&immoral are often more intelligent and cunning. These people can survive&thrive only in a state of confusion-hence have a vested interest in aggressively upholding and supporting-anything that will sustain or grow confusion. They seek refuge in confusion as they feel very secure in that environment. Simply, they are called "Anti-socials"-a terrible cancer to the society at large! An anti-social can be easily identified as follows. 1) He/She will talk in generalities-never be specific to the point 2)Will try to see what is invisible to others-ignore everything that is visible to all 3)Statements are packaged with half-truths to gain credibility of the innocent&gullible 4)Divert attention always blame the irrelevant&incongruous.
Mr Yogesh Ranta is beating about the bush saying nothing.Mr Shanti Bhushan is right in suggesting that that the Parliament has powers to enact a special Law about eradication of corruption and that there is no need for any amendment to the constitution.Only when a statute requires any amendment to the constitution,the States need to be consulted. Here there is no need for that.
Commentators of the scriptures of all religions say that only those with a pure mind and an eagerness to imbibe the divine prescriptions contained therein can understand these holy texts. This is also true of the written constitution of a democratic country. Our rulers today in their present degenerate state is not likely to be interested in understanding and following the dictates of the country's constitution.
Mr Shanti Bhushan undoubtely is a very compitent lawyer,and every lawyer interpret and draft the case to suit him. Yes not even a law student but also a student who is preparing for some government servicies related compititive exan can tell that there are three lists unoin,state and concurrent, and who can lagislate in them.But basic thing in our constitution is that we have a federal system,thats why states are also given power to lagislate.The matter also has to be seen in present political scenario,its not the time that only one political party is rulling the centre and almost all the states. Its time of coalition and different parties are ruling different states. We have seen with how much difficuly VAT was introduced and now states have problem with GST. So constitutionally its right that centre can lagislate if necessary but its not so easy politically,Mr. Bhushan.
When the laws are clear there should be no hesitation from the government to pass the bill. It should not shrink its responsibility by evading that the bill is not within the legislative competence of the government.
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