Let the debate rage

Justice A.P. Shah,who retired as chief justice of the Delhi high court last year,recently presented a detailed analysis of the Jan Lokpal bill draft that “civil society” activists want as a template for the legislation to be tabled in Parliament. Were this maximalist demand to be accepted,and were it to be passed into law,he said it would create “a gigantic institution that draws its powers from a statute that is based on questionable principles.” Shah,whose paper on the subject was excerpted on the op-ed page this week,was basing his critique on the bill’s failure to secure the safeguards of appeal and protection of privacy and reputation that citizens enjoy — to take just one instance,through the separation of investigation and prosecution functions that would collapse in the proposed architecture of the new anti-corruption body.

These are notes of caution that should deeply concern us because the principles that Shah,whose landmark rulings struck a blow for individual freedoms,upholds are pre-requisites for the civil liberties that Indians have fought so long and so hard to secure. And the point bears reiteration because a strange war cry can be heard in some quarters that to question the Jan Lokpal bill,clause by clause,is to be automatically complicit in the perpetuation of corrupt practices. It is in order to ask what the sequencing should be in cleansing our system. Should anti-corruption procedures be the end that justify the means,no matter how severely they undercut the basic provisions of our constitutional democracy? Or should

our constitutional democracy be strengthened,a process that cannot but proceed without fortifying mechanisms of accountability and transparency? The question is important,because as our columnist,Justice Mukul Mudgal,points out: “The checks and balances in a functioning and dynamic democracy cannot be rigidly demarcated but have to change occasionally to restore the effectuation of the legislative mandate which is the bulwark of a constitutional democracy.” This balance,in the pursuit of integrity,is attained by adherence to the constitutional framework of separation of powers and checks and balances so that there is no over-reach.

Fidelity to the constitutional framework is not an academic pursuit for its own sake: it is essential to guarantee our basic liberties,liberties that allow each one of us to be free individuals and to maintain the right to demand integrity from our legislatures and administrations. These are liberties this newspaper has consistently upheld,and always will.