The first objection by Smt Swaraj relates to reservations proposed by the Lokpal Bill. Smt Swaraj said reservation as talked about in this Bill is not according to provisions of the Constitution. In her second objection she said the proposed Bill attacks at the very roots of federal structure of the country.
Elaborating her arguments on the first objection, Smt Swaraj said that this Bill talks about reservation in the name of religion which is not provided for in the Constitution. The language of the Bill says under no circumstances will Minorities, Scheduled Castes, Scheduled Tribes and Women have less than 50 per cent reservation.
In fact, several Judgments by the Honourable Supreme Court have repeatedly said that total reservation cannot exceed the 50 per cent limit. However, the language of this Bill is such that there exists a high probability of increasing the limit of reserved seats beyond 50 per cent. Smt Swaraj said that the Bill says, under no circumstances will the number of reserved seats fall below 50 per cent. In other words, the Bill ensures that at least 50 per cent seats have to be reserved and it may be increased further, because there are no restrictions. Thus, this language is against the Judgments of Honourable Supreme Court.
The Constitution provides for reservation of seats for Scheduled Castes and Scheduled Tribes in government jobs and in politics. According to the recommendations of Mandal Commission 27 per cent seats have been reserved for backward castes but the Constitution does not provide for reservation based on religion.
For the first time, circumventing provisions of the Constitution, this Bill is making provisions for reservation of religious minorities and is thus unconstitutional.
Putting forth arguments in favour of her second objection, Smt Swaraj said Articles 252 and 253 of our Constitution grant rights to the Centre to make laws for the States. However, there is a crucial difference between these two Articles. While Acts passed under Article 252 work as a model Bill and States are free to either adopt or reject them, Acts passed under Article 253 becomes mandatory for States to adopt them.
The present Lokpal Bill has been introduced according to Article 253 of the Constitution that makes it mandatory for the States to adopt it. As a result all good Lokayukt Bills made by many States will have to be discarded and States will be under compulsion to adopt a useless Bill.
Also, entries given in Schedule 2 of the Constitution that relate to State government employees clearly mention that all laws related to employees of State will be made by the respective State governments. Many States had already made laws for the formation of Lokayukts.
Therefore, Act made for States under Article 253 will be unconstitutional.
Apart from these two objections to the Bill on Constitutional grounds, Smt Swaraj has termed this Lokpal Bill as “Powerless and Ineffective”.