The question of corruption
Exploring a link between Lokpal Bill and the J&K State
DEBATE BY B L SARAF
Muhammad Shafi Uri National Conference Member of the Rajya Sabha, while taking part in Lokpal and Lokayukth Bill debate in the house, raised objections on the application of Central Lokpal and Lokayukths to the state of J&K, by referring to Article 370 of the Constitution of India. He said that the application of this law to the State would seriously impinge upon its autonomy. His objection was almost in line with the stand taken by various regional parties on Lokpal and Lokayuktas Bill 2011. They demanded deletion of the chapter on Lokayuktas in the States. According to them it encroached upon the state’s powers to legislate and violated the federal character of the Constitution.The government, in reply, argued that since India is a signatory to UN Convention Against Corruption it would be appropriate to make law for the whole country. In this regard references to certain provisions of the Constitution were made.
A look at the Articles 252 and 253 of the Constitution may interest us here. Article 252 says that in case Parliament doesn’t have power to make a law, it can on the request of the States make law for them and whoever is concerned with that law. No such request came forth from any State. Article 253 provides that Parliament is empowered to enact laws for the enforcement of international treaties and U N Conventions. In this context
following questions come to the mind. Are we dependent on the UN Convention alone to make a law to combat corruption? Don’t we have the required laws already on Statute Book of the various States . The first question can be answered in the negative, while as answer for the second is in affirmative. Most of the states like Karnataka, Uttrakhand, NCR New Delhi and Bihar etc can be cited as examples. We too have in our State an ombudsman in the shape of the Accountability Commission Act. It is a different matter that the institution has remained non-functional for most of the time since its enactment. Though one of the like nature is missing at the centre. There are sufficient provisions in the IPC to deal with the menace of corruption ; not to mention a special law like Prevention of Corruption Act for the purpose. It will be atrocious to suggest, even by implication, that these laws framed by the state legislatures need be repealed and then reenacted by the Parliament to make them UN Convention on Corruption compliant. Why should India look to the UN convention in this regard when the Administrative Reforms Commission of GoI headed by late Morarji Dessai had recommended in year 1969 the introduction of Lokpal at the centre and Lokayuktas in the States. Prior to that, the Santhanam Committee set up by the Union Home Ministry had made similar recommendations to check the corruption at the high places.Therefore,Parliament need not necessarily invoke 2003 UN Convention in this regard. India has acted much before. However, refinement of the laws is needed to make them suitable to meet the emerging challenges posed by the malfeasance of the persons at the highest public places. In this context if the regional parties feel threatened of central onslaught on their powers they can not be faulted.
After all even the great votary of ‘strong center ‘ Arun Jaitley denounced the move by alleging, “ the Bill would lead to Constitutional havoc as the centre would be encouraged to usurp the powers of the States through the provision for setting up Lokayuktas.” The National Conference MP has, therefore, a point when he raises objection to the concerned provisions of the Bill. Given the peculiar constitutional position, at least, J&K state can’t be accused of “ bringing in fig leaf of federalism to protect it from having a Lokayukta .” The question of invoking UN Conventions for making laws by the Parliament for the States under Article 253 would, in my opinion , arise where for there is no legislative subject in the local jurisprudence, and for the matters which carry multinational implications. Human rights, ecology, environment and international trade, etc, are the examples which are covered by the UN conventions and inter-national treaties ; and thus become legislative subjects for the Parliament to legislate thereon for the Union and the States.
(B L Saraf is Former Principal District & Sessions Judge.
Mail at bushanlalsaraf @ gmail .com)
Lastupdate on : Mon, 2 Jan 2012 21:30:00 Makkah time
Lastupdate on : Mon, 2 Jan 2012 18:30:00 GMT
Lastupdate on : Tue, 3 Jan 2012 00:00:00 IST
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