Archive for December, 2013

NaMo’s Lok Pal

Finally the Indian Parliament has passed the Lok Pal Bill and we saw a lot of grand standing and credit posturing by all the political leaders of the Congress and the BJP.

Something surreal and sublime was happening in the country. For we Indians, used to seeing all political parties dispatching newly elected MLAs and MPs to some impregnable forts, blatant horse trading to cobble together majority, and parliament/ state assemblies being stalled for the silliest of reasons, this was a welcome change. The only time we saw our parliamentarians display unity was when it comes to their pay cheque.

Suddenly our leaders became goody two shoes. Post the Delhi elections we saw the victor and the vanquished, begging, prodding, and cajoling their biggest opponent Aam Aadmi Party to form the government. Parliament was ‘debating’, yes you read it right, debating on the need for an ombudsman organization, state funding of elections, electoral reforms, food security, price rise etc. Leaders were making ‘astounding discoveries regarding engaging people’. Basic principles of participative democracy is presented as ‘a bold new idea’. Our political class was displaying a new sense of exalted virtue and political morality. And India sure looked close to becoming a ‘paradise’.

Suddenly the leaders from Congress and BJP were graciously congratulating Anna Hazare for his contribution to ‘enact the Lok Pal Bill’. This was the same leaders who shooed away Anna and his India Against Corruption Movement, the last time around, ie., 2011, saying they were duty bound ‘to protect against outsiders trespassing into the law-making prerogatives of an elected Parliament’.

This time around, Anna, on his part, graciously accepted the ‘compromise Lok Pal’ offered by the government and called off his fast at Ralegan Siddhi. But, the most curious part was that all the leaders who spoke, conveniently forgot the contribution made by Arvind Kejriwal. But lost in the din was yet another important news – ‘Gujarat got its Lokayuktha’. And that brings me to the reason for writing this article.

ModiBut before we start I would like to take the legal meaning of ‘Ombudsman’ from which the concept of Lok Pal was born. In Government/Politics and Diplomacy, ‘ombudsman’ is a commissioner who acts as independent referee between individual citizens and their government or its administration.

Gujarat passed Gujarat Lokayukta Act in 1986, but almost from the time Mr. Narendra Damodardas Modi became the Chief Minister of Gujarat, the Gujarat Lokayukta, has not been functional.

In 2001, when Modi came to power in Gujarat, Justice RM Soni’s was the Lokayukta. Justice Soni was appointed during Keshubhai Patel’s rule in 1998 and his term expired in December 2003 and the post has been lying vacant since then. From then on Modi scuttled every move to appoint a Lokayukta and make the Gujarat Lokayukta, functional.

Finally on 25 August 2011, the Gujarat Governor, Dr. Kamla Beniwal, appointed Justice R. A. Mehta to the post of Lokayukta of Gujarat. Justice Mehta was recommended for the post by the Chief Justice of the Gujarat High Court S.J. Mukhopadhaya in June 2011.  A miffed Modi accused the Governor of running a parallel government in the state supported by the Congress and demanded that she be recalled.

The Gujarat government then challenged the appointment in the Gujarat High Court, arguing that the Governor could not make the appointment without the State government’s advice. On 10 October 2011, the two-member High Court bench gave a split verdict and in January 2012, a third member upheld Beniwal’s decision. This was a major blow to Modi.

The Gujarat government then approached the Supreme Court, however lost the case. The SC upheld the Gujarat High Court’s verdict that though the decision on Lokayukta appointment was made without consultation with or approval from Modi, it was as per the letter and spirit of the Gujarat Lokayukta Act, 1986.

The Gujarat government appealed against the SC verdict twice, but lost. Even after the SC upheld his appointment, Justice Mehta however desisted from charge of the office, citing 23 reasons. The controversy over his appointment, he said, had ‘denigrated the office of the Lokayukta and it had lost all the grace and dignity.’ (Read full text of his resignation letter here)

This was Modi’s chance. As is the norm in Gujarat, Modi wanted to appoint his man-friday for the role of Lokayukta, but he knew that this would not stand the scrutiny of law. So he now framed a new bill – Gujarat Lokayukta Aayog Bill, 2013.

The new Gujarat Lokayukta Aayog Bill, was passed by the state assembly in April, 2013, but, unfortunately, on 2 September 2013, the bill was returned by Gujarat Governor. On 1 October 2013, the state assembly passed the bill for the second time. But this time Governor Dr. Beniwal was constitutionally bound to accept the bill. Thus finally Modi had his way and succeeded in subverting the Supreme Court decision on the appointment of Lokayukta.

Unlike the Gujarat Lokayukta Act, 1986 the new bill provided primacy to the Chief Minister, over the Gujarat High Court Chief Justice, in appointing the ‘ombudsman’. The new Gujarat Lokayukta Aayog Bill, 2013 empowers a selection committee chaired by the Chief Minister appoints the Lokayukta. The panel comprises the Speaker of the Assembly, a Minister, the Leader of Opposition, the State Vigilance Commissioner and a High Court Judge, ‘to be nominated by the Chief Justice of the HC in consultation with the collegium of five senior judges’.

The new Bill also proposes a special provision which gives pivotal power to the state government in excluding any ‘public functionaries’ from the jurisdiction of the Lokayukta.

Then we saw Jayaram Ramesh capturing headlines saying ‘Modi talking on lokayukta is like Asaram talking on rape’. Jayaram was spot on, but then you know that these politicians only put on a public show to deride each other in varying degrees restraining themselves only to varying degrees of their innate civility or belligerence as is their habit. But they go ahead and do what they want anyway – even change a law or bring in a new one to suit their whim and fancy.

Lokayukta is an ombudsman body which is supposed to look into irregularities brought to its notice against the decisions taken by the state cabinet and the administration. Then how can the Chief Minister who is the head of the state cabinet have supremacy in deciding who should be the ombudsman?

This not only belies fundamental logic and intelligence. To me, it is a travesty of the institution of the ombudsman, but also provides an indication of authoritarian incoherence and double speaks by the Bharatiya Janata Party and Narendra Damodardas Modi.

Heads up – the politicians win. Tails up – the people lose !!!

Cartoon : Courtesy Satish Acharya