Jan Lokpal: The way out

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  1. Ray

    Ray The Chairman Defence Professionals Moderator

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    Jan Lokpal: The way out

    Rajeev Dhavan

    Arvind Kejriwal may well be looking for political martyrdom. One way is to blame Congress for blocking the Jan Lokpal. He can go through the process and let the home ministry reject his proposal. Or he can try and hold a Jan Lokpal mela (masquerading as the Delhi assembly) and pass the Jan Lokpal Bill which the lieutenant governor will predictably refuse to sign. The crisis he is looking for will emerge. The game, kaun banega vote-pati, will begin.

    Legal experts have lined up on both sides. On February 3, Kejriwal decided to bypass the lieutenant governor and the home ministry as required by law. BJP says it was not given a copy of the Bill. Congress says the procedure and Bill are unconstitutional. Both Congress and BJP want the Bill passed in the assembly not at the Ramlila Ground.

    Solicitor general Mohan Parasaran told the lieutenant governor that routing the Bill through the Centre is mandatory — more so, because the Bill before Parliament overlaps with the Jan Lokpal Bill. Two out of four legal experts (K N Bhatt and Pinaki Mishra) said no specific opinion on this was sought from them. Justice Mudgal, allegedly consulted, expressed dismay at Kejriwal's language for the lieutenant governor.

    We are not quite sure what P V Kapur (not known for constitutional expertise) said. Trotting, if not galloping to the issue, former attorney general Soli Sorabji says the rule requiring reference to the home ministry is unconstitutional — even though not declared as such; and presumably to be followed till then.

    Kejriwal's colleague Prashant Bhushan accepts there are two views, and the Bill can be approved by the president later. His take was full statehood for Delhi which is quite another matter. The result: total legal confusion. If smart lawyers are asked how much is 2+2, they reply: "How much do you want it to be?"

    The Centre's Lokpal and Lokayukta Act (LLA) was delayed on the federal ground that Parliament could not legislate Lokayuktas for the states since Section 63 of LLA does not prevent "state legislatures" from establishing a Lokayukta "if not so established". Delhi does not have to comply with Section 63, first because it is not a state and secondly, it already has a Lokpal of which the flamboyant Manmohan Sarin was Lokayukta.

    Suppose Kejriwal puts the new Jan Lokpal Bill in the form of amendments to Delhi's existing Lokayukta Act of 1996, would such an amendment Bill pass muster? I think it strains credulity for the Centre to play the Section 63 LLA card.

    Any limitations on the Delhi legislature passing the Jan Lokpal Bill arise from the Constitution's Article 239A, constituting the National Capital Territory. Delhi cannot pass legislation on public order, police and land and some special higher education matters. Parliament can legislate on all matters if Delhi's competent laws are contrary to Parliament's laws. The latter will prevail unless the president says that Delhi's law shall prevail.

    It is clear that no prior clearance is required for Delhi making law on any area included in its legislative competence. However, to the extent to which the Jan Lokpal Bill seeks to include the DDA and Delhi Police within its ambit, that is beyond the Delhi assembly's constitutional competence.

    A special procedure requiring the lieutenant governor's consent arises under the NCT Act of 1991 with respect to expenditure from the consolidated fund [Section 22 (3)]. In this context, the lieutenant governor means the home ministry. Arguably, the Jan Lokpal will be a charge on the consolidated fund.

    Delhi already has a Lokayukta and Uplokayukta Act, 1996, which states that all expenses and salaries are charged on the consolidated fund of Delhi [Section 5 (9)]. If this is the case, and Kejriwal presents his Jan Lokpal Bill under the existing Delhi Act of 1996, it would be stretching a point to say that each amendment has to be cleared by the president. Transaction Rule 55 does not bind the legislature.

    Kejriwal loves theatre and maybe planning a resignation forced upon him by the forces of political 'evil'. His colleague Yogendra Yadav advises him to slow down. His lawyer, Bhushan, interprets the law bifocally. Kejriwal should pursue the following steps: first, abandon the drama of enacting the Bill at the Ramlila Ground. Second, he should present the Jan Lokpal Bill as an amendment to the existing Delhi Lokayukta Act of 1996, thus obviating the consolidated fund controversy. Third, he should remove DDA and Delhi Police from the Jan Lokpal Bill and proceed to pass it. Fourth, he should include the DDA and police provisions later after examining the assembly's competence to do so.

    Drama has overtaken Kejriwal. He is a vote catcher with a vote bank. Maybe he doesn't want to stay on as chief minister and is looking for the excuse to pack it up. But our Constitution and governance run on two axes: democracy and rule of law. Absence of either leads to autocracy. Kejriwal owes more to his electorate than threats and tantrums.

    The responsible question is: Who will rule well? Not, who will rule to catch votes?

    The writer is a constitutional expert.

    Jan Lokpal: The way out - The Times of India
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    Quite a conundrum; at least that is what looks to the average person, who is not conversant with the twist and turns of legal arguments.

    What is the way out of this imbroglio?

    Theatre, drama, smoke and mirrors or the rule of law?

    If the rule of law, which interpretation is correct?
     
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