The Union Law Minister Mr. Salman Khurshid has announced the government’s intention of giving the proposed Lokpal a constitutional status. He said the Lokpal would be “more powerful than the Election Commission”. He thanked Mr. Rahul Gandhi for having mooted the idea in parliament. This writer is also very grateful to Mr. Gandhi for having made the proposal. Had he not done so, who in this government would have bothered about what was suggested in these columns much earlier on 18 June, 2011? Readers might recall that I had dismissed the very proposal of establishing the Lokpal as being counter productive. But because the proposal had got identified with the fight against corruption so deeply imbedded in the public’s consciousness, I suggested instead a remedy to rescue the proposal without inflicting damage to existing institutions.

I wrote:

“The Lokpal Bill can be rescued without upsetting the existing constitutional structure as the government wants, and at the same time effectively addressing popular demands voiced by representatives of the civil society… The following steps need to be taken…In order to differentiate the role of the Lokpal from that of the Central Vigilance Commission (CVC) the new institution should be entrusted with dealing only with political corruption that involves ministers, chief ministers and the prime minister. The CVC may continue to deal with the rest of the corruption cases. The judiciary should be dealt with by an independent Judicial Reforms Commission that may along with the Lokpal be made a constitutional body….All these constitutional bodies should be under the direct purview of the President. The CBI too should be made into a constitutional body directly accountable to the President. It has been suggested that the Lokpal should consist of eleven members. All the members of the proposed Lokpal would be appointed by the President without clearance by the cabinet... In the new dispensation the President may continue playing the role of adviser to the cabinet and to parliament without exercising final authority. But with regard to the functioning of all constitutional bodies the President would exercise direct authority over them. This should be explicitly stated for the public satisfaction. This arrangement would be in total conformity with the existing Constitution without disturbing the existing political structure.”

Subsequently both the CBI and the CVC strongly objected to the proposal to bifurcate or to tinker with the present structure of the organizations. The judiciary criticized the proposal to bring judges under the ambit of the Lokpal as unworkable. But these developments did not fully vindicate the proposal mooted in these columns. Nor does the proposal to give the proposed Lokpal constitutional status offer sufficient satisfaction. By itself a constitutional Lokpal would be a mere half measure. The most crucial aspect that would make the proposed Lokpal a constructive and workable proposition relates to the changed role of the President. Without that the entire exercise remains hollow. Fortunately events are moving in a direction that might compel the government to alter the conventional perception about the President’s role.

The Gujarat High Court might also just vindicate the views expressed in these columns. In the current crisis related to the appointment of the Gujarat Lok Ayukta the court gave a split verdict. One Judge upheld the right of the Governor to act without consultation or clearance by the Gujarat cabinet. The second judge opposed it. Now the matter will be decided by a larger bench. If the final verdict upholds the Governor’s right to act without reference to the cabinet the matter will not end there. In the light of the court’s ruling the role of the President of India would have to be necessarily reappraised. As was pointed out when the controversy regarding the appointment of the Gujarat Lok Ayukta first arose,  the Governor is not subservient to the state government’s cabinet. Nor is the Governor subservient to the Union cabinet. In the Dr Raghulal Tilak case (1979) the Supreme Court had ruled that in no manner was the Governor “subordinate or subservient” to the Union Government. The Governor therefore has to be subservient to the President of India who is the appointing authority. The Governor cannot act as a sovereign entity accountable to none. The President is finally accountable to parliament that has the right to impeach the President.

Describing the executive power of the State, Article 154 of the Constitution states:

“The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution.”

Describing the executive power of the Union, Article 53 of the Constitution states:

“The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.”

The only difference between the two is created by the 43rd Amendment of the Constitution which specifies that the President must act according to advice tendered by the cabinet. This amendment was introduced during the Emergency by a paranoid Prime Minister who had imposed dictatorial rule. Even if this Amendment is not scrapped, which it should be, the President’s powers related to all matters that do not emanate from cabinet decisions remain intact.

In the light of this if the Gujarat High Court decides that the Governor was justified to act without consulting the cabinet, how can the system disallow the President of India from doing the same? The government should mull over this question. And all political parties should start engaging their minds about a suitable Presidential candidate in the light of the emerging new realities after President Pratibha Patil’s term ends next year.