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'Panel's job less search and more rubber stamp'

Kian Ganz, Mar 9, 2014 : 22:55 IST
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 after it was first floated 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 are already pesky enough to deal with on a daily basis. No grand old government in its right mind would therefore openly welcome a new way they - and the work of its servants - can be attacked and embarrassed.

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 social activist Anna Hazare and others. They dared the creation of an omnipotent super bench but risked upsetting delicate Constitutional balances that have taken decades to find their uneasy equilibrium.

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 would have to adjust to what it can perform.

Politicisation

But the underlying difficulty with Lokpal will always be that whoever you put into it will occupy a unique position and potentially wield more practical power with fewer checks and balances than most Chief Justices of India do. 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 ombudswoman-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 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 panel’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 who have 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'.

Flawed process

“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”.

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 panel, 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 belie 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.

(The writer is the founder and editor of legal industry news website
LegallyIndia.com)

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