Why the Lokpal bill faces a challenge

The Constitutional (116 amendment) bill is the enabling bill that would enable lawmakers to grant the Lokpal constitutional status. Sheela Bhatt reports that to maintain the set procedure of the Lok Sabha the constitutional ammendment bill, which requires two-third majority in both houses of Parliament, has to be passed before passing the Lokpal and Lokayukta bill.

A former secretary, who has also served in the ministry of law, told rediff.com that the Lokpal and Lokayuktas Bill, 2011 which has been tabled in the Lok Sabha and a parallel but separate bill named "the Constitution (one hundred and sixteenth amendment) bill, 2011 are totally interlinked."

They are like Siamese twins. The Lokpal bill can be passed with a simple majority but any amendments to the Indian Constitution requires a two-third majority in both the houses of Parliament. The Lokpal and Lokayuktas bill intends to create an anti-corruption ombudsman with constitutional status but the constitutional bill is the enabling bill that would enable the law-makers to grant the Lokpal constitutional status.

This means that Parliament will have to first pass the Constitution (one hundred and sixteenth amendment) bill, 2011 and only then debate and vote for the Lokpal and Lokayuktas bill.

Since the officer has been re-inducted in the establishment he does not want to speak on the record. He is currently engaged in the law-making process.

On December 22, the government has first tabled Lokpal and Lokayuktas bill and soon after it has moved the constitutional amendment bill. This move is a little controversial.

Subhash Kashyap, former secretary general of Lok Sabha, pointed out an anomaly in the procedure adopted. He said to grant right to education, the constitution amendment was moved in 2002 and it was passed by both the houses. That was the 'enabling bill' that paved way for free and compulsory education to Indian children. For six years people of India had the right to education but the Right to Education bill was passed only in 2009 that made it compulsory for the government to provide free education to children aged 6 and 14. 

Talking about Tuesday's much-awaited debate over the Lokpal and Lokyuktas bill Kashyap said, "The constitutional amendment bill has to be passed first by Parliament. That is the set procedure."

This is a very important aspect to understand in the debate in coming three days in the Lok Sabha. After the debate, if the constitutional amendment bill is unable to muster two-thirds majority to pave way for the Lokpal and Lokyukta bill, the entire exercise will be meaningless even if there is a majority for the Lokpal and Lokayukta bill.  

Since any constitutional amendment requires 2/3 majority in both houses of Parliament to become a law, the United Progressive Alliance government that keeps talking about passing the bill should stitch up the support of the opposition parties, too. The work of mustering two-third majority support in the Lok Sabha, which is political in nature, has so far, not yielded any success. Rather, the bill-makers within the government have introduced elements in the bill that will ensure that all the political parties will have something to oppose in it!

Also, many political observers believe that from political point of view the Lokpal and Lokayuktas bill, 2011 should be passed by the two-third majority in the Lok Sabha and not by a simple majority. The proposed bill has kept 50 percent quota for the nine members of the Lokpal. This minority quota includes Scheduled Castes and Tribes, women, Other Backward Classes and minorities including Muslims. The Constitution prohibits reservation on the basis of religion. Unless a two-third majority of parliamentarians approve the bill, the proposal for reservation for minorities can be easily challenged in the courts. Keeping this in mind, Lalu Yadav and Mulayam Singh Yadav want to move a constitutional amendment to allow minority reservation in the Lokpal panel.

The Bharatiya Janata Party is staunchly opposed to the idea of reservation on basis of religion.

The government has merely proposed 50 percent quota including to minorities in the Lokpal panel but it has not moved a constitutional amendment for it as desired by the Yadavs.

The constitutional amendment that would grant Lokpal constitutional status has one line that says, "Subject to the provisions of any law made by Parliament, the appointment of the chairperson and members of the Lokpal shall be made by the President."

While talking about the debate over Lokpal bill that starts from Tuesday, the official who served at various top posts in government said without any excitement, "You don't understand. It's all about the Parliament. As far as my understanding of the current Indian Parliament goes it doesn't want the Lokpal."

He emphasised that parliamentarians in India don't want the Lokpal because it means that they are forced to share power.

He said, "The most important thing to note is that the Lokpal and Lokayuktas bill and the constitutional amendment bill are interlinked. So, if anybody thinks that it can pass the Lokpal bill and send the constituent amendment bill to the standing committee or keep it aside for another day are wrong. The parliamentary system won't allow that. Both bills have to pass together. This seems impossible as on today."

The debate for both bills has been scheduled for Tuesday in Lok Sabha. Anna Hazare will be going on fast to create pressure on parliamentarians who will be debating the Lokpal bill in the coming three days.