Split wide open

But this has not been the permanent view of the government. Interestingly,every time a non-Congress government has introduced a Lokpal Bill in Parliament it happened in 1977,1989,1998 and 2001 the Prime Minister was sought to be put under the jurisdiction of the Lokpal.

The office of Lokpal was first envisaged in the early sixties and a Bill to set up this office had been introduced in Parliament at least seven times though it was never passed.

A Lokpal Bill was first introduced in Parliament in the year 1968,on the recommendation of the first Administrative Reforms Commission. The Bill was passed by the Lok Sabha but was still pending in the Rajya Sabha when the Lok Sabha dissolved. As a result,the Bill lapsed. This same Bill was then re-introduced in 1971. But it was also allowed to lapse again.

The Prime Minister as well as state chief ministers were exempt from the provisions of this Bill,and so were all Members of Parliament.

A fresh Lokpal Bill was introduced in 1977 after the Emergency and in keeping with the atmosphere prevailing at that time; it covered the Prime Minister as well. This Bill was still being discussed in Lok Sabha when the government fell.

The next Lokpal Bill was brought by the Rajiv Gandhi government in 1985. It had more or less the same provisions as the 1977 Bill except for the fact that the Prime Minister was now excluded from the jurisdiction. This change was reversed in 1989 when the government led by V P Singh,who had won the election on the issue of corruption,brought a fresh Bill.

Subsequently,Lokpal Bills were introduced in 1996,1998 and 2001.

The main argument against bringing the Prime Minister under the Lokpal is that it would undermine the persons authority to lead the government.

Two recent commissions have dwelt on this issue in detail and both reached the conclusion that while it was desirable that even the highest office was treated equally before law it was not advisable to let the Lokpal investigate the PM.

The National Commission to Review the Working of the Constitution,set up by the NDA government,had circulated a consultation paper on Probity in Government in which it dealt with the issue of Lokpal and whether it can investigate the Prime Minister.

The nation cannot afford to have a Prime Minister under a cloud,unless there are real and substantial grounds to believe that he may have been guilty of some serious misconduct. There is also a belief that the Prime Minister of a country should not be subjected to Lokpal as this would severely impair his independence and freedom of judgment. The Prime Minister should have a free hand and absolute independence which is most necessary. Even if a particular Prime Minister is inclined that he should be subjected to Lokpal,his readiness should not weigh with the commission, the commission said,while recommending that the PM be kept out of the jurisdiction of Lokpal.

The commission said if it was indeed decided to bring the Prime Minister under Lokpal,it must be provided that before the Lokpal undertakes any investigation,inquiry or any other proceeding against the Prime Minister,he should first obtain the permission of the President in writing.

The Prime Minister normally represents the will of the majority of the people,being the leader of the majority of the elected representatives. The legitimacy to rule belongs to him and his council of ministers. As against this,the Lokpal,a mere appointee,cannot be so empowered as to erode the image,reputation and personality of the Prime Minister by seeking to investigate or inquire into each and every allegation, it said.

A few years later,the second Administrative Reforms Commission,headed by Law Minister M Veerappa Moily,took an almost similar line in its fourth report.

Those who believe that the Prime Ministers conduct should be scrutinised by the Lokpal rightly argue that all public servants should be accountable8230;However,there are deeper issues that need to be examined carefully. The Prime Minister is accountable to Parliament,and on his survival depends the survival of the government. If the Prime Ministers conduct is open to formal scrutiny by extra-Parliamentary authorities,then the governments viability is eroded and Parliaments supremacy is in jeopardy, the commission said.

The counterpoint has been repeatedly put forward by Anna Hazare and his colleagues,most recently in a letter lawyer Shanti Bhushan wrote to Finance Minister Pranab Mukherjee on Tuesday.

Contrary to popular misconception,the Prime Minister does not enjoy any immunity from investigations under the Constitution. Many Prime Ministers have faced investigations in the past. The government feels that ongoing investigations would make a Prime Minister dysfunctional. So did Mr Rajiv Gandhi become dysfunctional after investigations started in Bofors case? Did Mr Narasimha Rao become dysfunctional due to investigations in the Jharkhand Mukti Morcha case? Bhushan asked.

The governments apprehension that the Prime Minister would face a series of frivolous and mischievous complaints is incorrect because a full bench of Lokpal would first decide whether to accept a particular complaint or not. The complainant would be severely fined if they turn out to be false or unsubstantiated allegations, he wrote.

The jury is still out.