The outgoing Chief Justice of India, in open court recently observed that the Government of India was dragging its feet over the appointment of the Lokpal even though Parliament had passed the Lokpal Act. The delay in implementing the Act was impeding the fight against corruption in public life.

The observation of the Chief Justice was avoidable, it must be said with respect. The Act is unconstitutional, and should not be implemented. The official Bill to pass the Act was moved by the Government – evidently, the Government has been badly advised. Ostensibly, the Act is supposed to curb corruption – it will do no such thing. The Lokpal’s jurisdiction is restricted to cases of disproportionate assets amassed by public figures. The Act is redundant as the Prevention of Corruption Act is adequate to serve the same purpose. Lokpal does not cover day-to-day corruption that actually plagues the common man relentlessly.

Assuming that the Act were Constitutional, the timing of the observation of the Chief Justice was somewhat delicate. He was on the verge of retirement, and judges of the Supreme Court are probables for the post of Lokpal. A Supreme Court judge retires at 65, and the Lokpal will retire at 70. A retiring judge as the Lokpal could be at the risk of diluting the independence of the Judiciary.

Ironically, the said provision in the Act is against the spirit, if not the letter, of the celebrated judgment of the Apex Court itself in the Keshvananda Bharati case. ‘Independence of the Judiciary’ is now a ‘basic feature’ of the Constitution – hence, immutable. For the judiciary, it is a salutary self-imposed limitation. Unfortunately, the present Government has already damaged the basic structure by appointing a retiring Chief Justice as a Governor, a position under the Executive.

An unhealthy precedent has thus been set, without even a murmur of disapproval from the judiciary. Given half a chance, the present Government may be more than willing to further dilute the independence of the judiciary by offering camouflaged sops to retiring members of the Higher Judiciary. There is every possibility of the present Executive to misconstrue such observations of the Chief Justice, howsoever well-intentioned these may be.

“A judge can be more easily corrupted by ambition than by money”, was the astute observation of one of the greatest judges of the American Supreme Court. The provision in the Lokpal Act fixing the age of retirement at 70 has the potential for misuse. It could prove to be too tempting a prize for some retiring members of Higher Judiciary to resist, as appointment of the Lokpal will be in the hands of the Executive.

The aforesaid is the least toxic of the provisions of the Act. The Lokpal will be some kind of a super cop, a member of the Executive. He will be selected by a committee comprising, inter alia, the Chief Justice of India. It will be essentially an administrative committee, a part of the Executive. In other words, members of the Higher Judiciary are being proposed for Executive duties. This will be another violation of the ‘basic structure’ of the Constitution.

‘Separation of powers’ is one of the most important amongst the twenty odd features of the ‘basic structure’. Just as the executive cannot encroach on the judicial domain, similarly the judiciary should not be inducted into executive functioning. Article 50 of the Directive Principles of State Policy casts a moral responsibility on the State to separate the Judiciary from the Executive. It would be ironical if the State having done so would now bring the Judiciary back into Executive functioning.

If judges of the Supreme Court were to be members of administrative committees, a very anomalous situation may arise. Suppose a candidate for the post of Lokpal were to be rejected by the Selection Committee. He can always exercise his Fundamental Right to move the High Court under its Writ jurisdiction to challenge the Committee’s functioning as biased and motivated. Will the High Court summon Supreme Court judges or pass orders on their functioning? Will it ask them to justify their actions before it?

The Lokpal will be basically an investigation agency, a super CBI. It will have benches comprising Supreme and High Court judges who will superintend investigation by Lokpal police. The investigation will continue to be done under the Criminal Procedure Code 1860, the oldest law in the statute book. Under the Code, the judiciary has absolutely no role as investigation is the exclusive prerogative of the executive. It is settled law for a century and a half.

The investigation report will be submitted in the court of a Special Judge who will be a member of the subordinate judiciary. If investigation were to be monitored by Supreme Court and High Court judges, the accused may hardly get justice before a subordinate judge! It will be a travesty of criminal justice. It is settled law that the judiciary has no role in the investigation of offences. Under the Code, the High Court can pass any order in the “interest of justice”. But the Supreme Court itself has ruled that one exception is non-interference during investigation.

The Public Prosecutor will be a part of the Lokpal, and serve under him. Yet again, this is against settled law as under the Code, the Public Prosecutor is an independent functionary and not part of the prosecution. Indeed, the term ‘prosecutor’ is somewhat of a misnomer, as held by the Privy Council. He has been described as an ‘officer of the court’ whose duty is to assist it in finding the truth and not to somehow secure a conviction.

The Lokpal, during the course of investigation can ask for the suspension of any class 1 officer. And the Government shall normally comply. In case the Government differs, it shall explain the reasons for it. This is a very anomalous provision, as the Appointing Authority is the Disciplinary Authority in law. And the appointing authority of class 1 officers is the President of India. The provision implies that the President shall have to justify his action before the super cop!

A quota is provided for SCs/STs/OBCs/minorities in the Lokpal. Mercifully, there is no quota in the Higher Judiciary on caste or communal basis. To provide such a quota in the ranks of Higher Judiciary would be to divide the judiciary on caste and communal basis, even if indirectly. Incidentally, the caste cancer is now spreading amongst higher castes in state after state – Maharashtra, Gujarat, Haryana, Karnataka etc.

Regulations enacted by Lokpal will govern investigation. This is a proposition of doubtful legal validity. The investigation will continue to be done under the Criminal Code which is a Central law, adopted by the states. A super cop should not be authorized to frame Regulations under his own authority, as he will be accountable to no one.

The Lokpal has been granted unlimited discretion to delegate his powers, which include raids, search and seizure to any “officer or employee”. Such a provision is in violation of Administrative Law whereby a power delegated cannot be sub-delegated. He will be authorized to attach “proceeds of corruption”, an expression which is vague and undefined. It is bad in law to empower an executive authority to do so, which is the lawful function of an independent court of law, after examining all evidence.

In sum, the Lokpal Act is highly unconstitutional. Parliament may like to reconsider it.

The writer is a retired IAS officer.