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Besides the resistance the Lokpal Bill faces from the political class, there are also doubts whether all its provisions are consistent with the Constitution. Many experts feel the reservation for minorities provided for under the Bill, as well as that it seeks to set up Lokayuktas in states, put the provisions of the bill at odds with the Constitution.
Constitutional experts Soli J Sorabjee and Rajeev Dhavan questioned the government's wisdom in providing 50% reservation for SC/ST, OBC, minorities and women in the 9-member Lokpal body saying the idea of empowerment which had been misused to make the anti-graft body an "accommodative joke".
The former attorney general seemed baffled by the provision. "What is minority in the context of Lokpal? Lokpal is not to generate jobs but to fight corruption. Why is reservation given? It was to ensure that those who have been oppressed for centuries were given a level playing field. In the context of Lokpal, the reservation is completely extraneous. Where is the question of empowering or redressing oppression in the appointments to Lokpal body?" he asked.
Union minister M Veerappa Moily defended the provision arguing it was not reservation in the strict sense but provision to ensure representation of all sections in the constitutional body: "Even higher judiciary ensures all sections of society are represented in appointments to high courts and the Supreme Court. So, why not make the Lokpal open to representation from all sections?"
Lawyer Harish Salve, dubbed the quota provision as unconstitutional. "Reservation for minorities is unconstitutional. Minority protection in our country is on a different plane, and is not supposed to be achieved through a reservation. He cautioned about the repercussions of the reservation for minorities. Tomorrow there will be a demand for separate electorate".
Senior advocate Rajeev Dhavan slammed the Bill on both counts - reservation and for violating the federal structure as mandated by the Constitution. "The 9-member Lokpal body is an unwieldy one and this kind of representation through reservation can weaken it. Suppose the body is divided on a corruption issue by 5:4, then the one to be proceeded against will say look four still support my innocence. The Lokpal has become an accommodative joke," he said.
Subhash C Kashyap , constitutional expert and former secretary general of Lok Sabha also said that the reservation for minorities was in conflict with the Constitution." Reservation for minorities is unconstitutional. Our Constitution does not allow reservation for minorities".
Dhawan questioned the Bill also for its aim to enact a law for setting up of Lokayukta institutions in states. "It is doubtful if the Centre has the power, as a matter of constitutional principle, to impose Lokayuktas on states," he said. Moily, however, defended the Bill on this count as well.
The bill could be compared with RTI Act, under which the states were appointing information commissioners, he said.
M Veerappa Moily defended the quota provision, arguing it was not reservation in the strict sense but provision to ensure representation of all sections in the constitutional body.