‘Only a dictatorship can have such a law’
Known for several progressive judgements, including one that decriminalised homosexuality inIndia, Justice AP Shah, former chief justice of Delhi High Court, has also been associated with campaigns for rights of the homeless and construction workers. In conversation with Hardnews
Sadiq Naqvi Delhi
Team Anna’s version of Lokpal will create another gigantic white elephant — authoritarian and unaccountable. Do you agree with this view?
The bill envisages the creation of a giant bureaucratic structure for policing everybody — from the prime minister to the judiciary, and the bureaucracy from top to bottom. The powers conferred under the bill include wire tapping and punishment under the Contempt of Court Act for violation of the Lokpal’s order — ordinarily a power of the judiciary. It can even dismiss government employees. Disturbingly, it also has the power to suspend contracts, revoke leases and blacklist people. Both CBI and the police would be under it, making it investigator, prosecutor and enforcer rolled in one. Hitherto these powers have been exercised by different authorities; to concentrate them all like this is unprecedented in Indian history, nay, world history. Only a dictatorship can have such a law.
There are no checks and balances. Lokpal is not accountable to anyone; it can only be removed if found guilty of misbehaviour by the Supreme Court, which is not the same as accountability.
In a deeply fragmented, unequal country like India, do you think Lokpal is the only solution to corruption?
To say that Lokpal would eradicate corruption is a very simplistic approach. The argument is that the present institutions have failed to tackle corruption, so there is a need for a more powerful body. Team Anna has perhaps not understood the dynamics of corruption. One of the reasons behind corruption is social inequality. You make very exploitative, unjust and discriminatory laws, but they are laws. So, for instance, 10 lakh rickshaw pullers in Delhi have to bribe the police, MCD, everybody, in order to survive. Else, they would probably starve and die. Thus there is also corruption because of unjust laws. So we need to look beyond high ticket corruption.
Corruption has gone too deep into our psyche to let this particular law change the mindset of bribe-giver and bribe-taker. As Lokpal would be working with the same corrupt administrative machinery, how is it going to make a difference? Take the police, for instance, who are supposed to care for human rights and maintain the rule of law. We have failed to take it out of the colonial mould. In 2006 Supreme Court directed the central and state governments to kick-start police reforms, but that is yet to take off. Elections too generate a lot of black money. To deal with corruption one has to look at all such issues. It is absolutely true that Lokpal is not a magic bullet or a magic wand. Still, whatever is happening in this country is welcome as it has created great awareness among people.
Do you believe that more the number of protestors, greater the chance of eradicating corruption?
These protests won’t be able to tame corruption. We need systematic reforms in all the systems, including the judiciary.
This movement has been compared with Jayaprakash Narayan’s (JP) movement…
This movement cannot be compared with the JP movement. Perhaps it is similar to the anti-reservation agitation. Ours is a parliamentary democracy functioning under a Constitution. Only Parliament can make laws, but these people want to assume the role of lawmakers. No one can say that only their draft is perfect, but Anna Hazare says, either accept our draft or go. This is recklessness and the tyranny of virtue. Because he says he is a very virtuous man and hence the law should be passed according to his wishes. That would be a complete subversion of the Constitution that can lead to anarchy.
Is Team Anna acting arrogant and dogmatic? Are they refusing to go for a consensus?
Team Anna doesn’t believe in democracy. Arvind Kejriwal said Parliamentary Standing Committee is a waste of time. When this draft was made, no one was really consulted. It has probably been drafted by just three of them — Prashant Bhushan, Shanti Bhushan and Arvind Kejriwal.
What are your views on the demand for inclusion of the judiciary?
Judicial independence is important for democracy. It’s simply unthinkable to create another power to police the judiciary. Besides, the bill may lead to an absurd situation.
The Lokpal can only be removed by Supreme Court and its orders challenged only in the apex court and high courts. In that sense Lokpal would be accountable to the judiciary. The Jan Lokpal Bill makes the judiciary accountable to the Lokpal. The basic principle is that justice should not only be done, but it should also appear to have been done. So when Lokpal is policing the judiciary, but its decisions can, in turn, be challenged in the judiciary, how can anyone aggrieved by the Lokpal still have any faith in the judiciary?
Moreover, the Judicial Standards and Accountability Bill is already with the Standing Committee. It only needs to be made robust and strong. All the political parties have agreed to a constitutional amendment. They cannot insist that the judiciary should be under the Lokpal.
Judges can be removed on account of their misbehaviour, which comprises more than just corruption; there’s also nepotism, favouritism, passing arbitrary orders, not following judicial ethics etc. All these would fall outside the ambit of the Lokpal who would not have the powers to take action. So you would have two authorities monitoring the judges — Judicial Oversight Commission, the authority that should really be monitoring the judges, and a separate Lokpal only for corruption. This is very dangerous. No country has appointed an ombudsman over the judiciary.
Is the movement largely a media creation?
That’s partly true. Not many people in the movement and in the electronic media know what the Lokpal is all about. They may not have even read the bill, understood its implications and the arguments for and against it. There is no objective discussion.
It’s disturbing that those who criticise the Jan Lokpal are branded as anti-national and supporters of the corrupt. In a democracy everyone has a right to air grievances, and in this case, there are valid grievances. For instance, it would become a very tedious task for one institution to deal with 42 lakh employees like the Jan Lokpal draft envisages. So you must decentralise it. Anna Hazare says he is a Gandhian, but Gandhi’s first idea was decentralisation.
Then there is this issue of the prime minister and the judiciary. National Campaign for People’s Right to Information’s (NCPRI) draft has asked to bring the prime minister under Lokpal’s ambit, but with some safeguards, while keeping the judiciary out of it. There is also the issue of grievance redressal. The Karnataka Lokayukta’s office has 56,000 pending complaints, mostly grievances. I don’t know how they will deal with it under the Lokpal. I think the government proposes to bring a bill soon, but it should be more proactive.