Diluting the PM’s authority will lead to instability, but a system is needed to address allegations of corruption against a PM
J S Verma
Former Chief Justice of India
However efficient a Lok Pal might be, any inquiry will take time and instability in the country for even a short duration is detrimental
According to the scheme in the Indian Constitution, there is a provision for president’s rule to prevent the failure of the constitutional machinery in the states. Article 356 allows the president to dismiss a state government if he is satisfied with the report of the governor, or otherwise, that the government of the state cannot be carried out according to the provisions of the Constitution. The consequence is president’s rule in the state.
But there is no provision for president’s rule for the Union government. There can, thus, be no situation that may cause instability at the national level, which may even have international repercussions. The prime minister’s authority being diluted in any manner cannot be envisaged in the national interest. Because of this factor alone the office of the prime minister has to be treated differently, and it cannot be equated with that of the chief minister of a state. The prime minister’s accountability has to be enforced only through the political process while he holds that office. It is not as if the prime minister is immune from accountability, but the mechanism for his accountability while in office is through the political process in Parliament.
In this respect the prime minister’s office cannot be equated even with that of the Chief Justice of India. If the prime minister goes, the entire cabinet goes with him or her. The consequence is not the same if the chief justice is under a cloud or has to go. The tenure of the puisne judges or the working of the court is not disrupted if the chief justice is rendered dysfunctional because at least an acting chief justice can be appointed under Article 126 of the Constitution, and each other judge holds office in his/her own right by virtue of a direct appointment. Every judge has equal and independent judicial powers and the chief justice is only the first among equals in that respect.
A parliamentary form of government cannot function with a lame-duck prime minister. Any situation in which the prime minister’s authority or power is eroded, which is bound to happen if he is under the purview of the Lok Pal, during an inquiry against him will turn him/er into a lame-duck prime minister causing instability in the country. However efficient a Lok Pal might be, any inquiry will take time and instability in the country for even a short duration is detrimental to national interest.
The prime minister’s position in a cabinet form of government is unique. In the words of a British constitutional expert, the cabinet is “the hyphen that joins and the buckle that fastens the legislature with the executive.” And who controls the cabinet? The prime minister!
Besides, in our Constitution, every aberration or fault is not meant to be corrected only by the judicial process or something akin to it. Some are meant to be corrected politically. Enforcing the prime minister’s accountability while in that office falls under the latter category.
The Lok Pal cannot take over the entire governance, overriding all other constitutional institutions. The remedy is to strengthen national institutions and to restore their credibility and not to supplant them all with the Lok Pal. The Lok Pal must supplement and not supplant the institutions created by the Constitution, maintaining the essence of separation of powers consistent with the basic structure of the Constitution.
The prime minister is privy to a lot of sensitive information in national interest. That secrecy cannot be compromised. Any situation in which he has to reveal such information to defend himself before the Lok Pal could be extremely dangerous.
India does not suffer from a dearth of laws. The real problem is of their faithful implementation. The need is to address this issue simultaneously. The jurisdiction of the Lok Pal must be very carefully addressed without being swayed by emotions. The justified public anger against corruption must be channelled fruitfully. Let there not be another institution that becomes ineffective because of the unbearable burden it takes. It should bite only as much as it can chew!
Venkatesh Nayak
Programme Coordinator, Access to Information, CHRI*
Since the PM’s office coordinates the activities of all ministries the PM cannot escape the blame for corruption
The proposed Jan Lok Pal Bill is addressing the task of ensuring that accusations of corruption against any public servant are investigated. The prime minister is also a public servant so there must be a procedure for dealing with credible complaints against the prime minister too. There are no choices; the options are about how the prime minister should be dealt with under the Bill. Being head of the government his position carries prestige, he is bound by responsibilities to Parliament and as an MP he has privileges. For instance, he cannot be picked up for interrogation by an investigating officer like any ordinary citizen. There are more restrictions imposed by MPs’ privileges when Parliament is in session.
It has been argued that the prime minister only heads the government while other ministers handle the day-to-day functioning of ministries. So he cannot be held responsible for corruption in those ministries. This argument ignores two major points. First, as head of government the prime minister has the prerogative of selecting individuals to form the government. He is not only first among equals, he is virtually the leader who gives the final go-ahead on all government policies. Since the prime minister’s office has the primary duty of coordinating the activities of all ministries the prime minister cannot escape the blame for corruption that may occur in one or more of them. We are not talking about petty corruption but high-level scams, like the one on 2G spectrum, that may involve senior bureaucrats and even ministers. No such big-ticket item escapes the notice of the prime minister’s office when it comes to making the initial decisions. Many such decisions have to go through cabinet. It is a principle of the cabinet form of government that ministers are individually and collectively responsible to Parliament.
Second, the prime minister is also in charge of the day-to-day affairs of several departments like atomic energy, space, administrative reforms, to name a few. It is nobody’s case that corruption will never occur in such departments. The question to be asked is how far the jurisdiction of the Lok Pal should extend when it comes to the prime minister not only as head of government but also as the minister in charge of specific departments.
The National Commission to Review the Working of the Constitution and the Second Administrative Reforms Commission under Veerappa Moily had said there is a parliamentary procedure for removing the prime minister the (vote of no confidence) and any further restrictions would be unconstitutional. Does that mean that no one should inquire into allegations of corruption against the prime minister? The prime minister is covered by the Prevention of Corruption Act and under it the courts can try the prime minister with the sanction of the president. But how will the president have access to the material that will inform him adequately to make a decision on whether or not to provide such a sanction? Under Article 74 of the Constitution the president will be aided and assisted by the prime minister and the council of ministers. Will the Union Cabinet with the prime minister presiding over its meeting approve a proposal to investigate or prosecute the prime minister himself? This is why we need to create an independent and empowered body to investigate complaints of corruption against the prime minister and to advise the president on these.
In the US, President Bill Clinton was prosecuted and nearly impeached but it has the Special Public Prosecutor appointed by the Attorney General’s office to investigate the accusations against the president. This process went all the way to the US Congress.
We do not have such a system in India yet. The Lok Pal can, therefore, collect evidence and do everything short of interrogating the prime minister. It can place all evidence it collects before Parliament. A parliamentary panel can take charge of the case and decide the fate of the prime minister. After all, the prime minister should be accountable to the people through his peers between elections.
*Commonwealth Human Rights Initiative
