Sovereign Immunity in Democracy: A Lokpal Perspective

Dear Friends,

We are discussing about putting PMO and CJI under LOKPAL scanner for last few months. I believe that;

1. Mr. President, Mr. Prime Minister, Member of Parliament, etc. enjoys Sovereign Immunity (Art.75(2) of constitution of India protect from the legal prosecution in any courts to the PM and Council of Minister from anything which is advice to the President. Secondly Art. 105 give protection to the Member of Parliament which is done in the parliamentary proceedings. And thirdly Art.361 protects the President and Governors of any State in India.) For their acts done in OFFICIAL CAPASITY. One cannot sue Mr. PM or any MLA or any of their advisors for any political decision or a strategic decision. One cannot sue PM for relationship with foreign states, one cannot sue MLA for damages for loophole in any law, and one cannot sue the lower judge whose decision has been reversed by the appellate court. Because such decisions are taken by these persons while discharging functions of the CHAIR. But these persons can surely be sued for wrongs done in their personal capacity. There is no such IMMUNITY if the wrong has done in their personal capacity. Judges can be sued if they have not taken the decision in good faith but on corrupt practices. Even any MLA or MoP can sued for corrupt practices.
2. Official Capacity means the decisions taken in chair for discharging the duties assigned to the chair; whereas personal capacity means acts done purporting benefits, interests of the person himself.
3. Problems occur when a person in chair while discharging its duties, undertake certain acts, decisions which are favorable to ‘the person’ in chair and not to ‘the chair’. Such conflict of interest is known as the CORRUPTION.
4. In short, whether such act causing corruption has been done in official capacity (to discharge functions of the Chair) or in personal capacity? (to extract benefits for self) How can a decision of taking bribe be political or strategic decision! How can one say that such decision is taken while discharging functions of the CONSTITUTIONAL CHAIR!! This is nothing but a act done in personal capacity.... (Whether the money or benefits derived by corrupt practices are going to Government Treasury for naming it as Decision taken in Official Capacity??? )

          I think the acts causing corruption are performed just sitting in chair but actually in personal capacity only. Hence any corruption charges against PM are against the person sitting in chair of PM and not against the Chair of PM itself. Thus, countering allegations against corruption, no one can take defense of sovereign immunity. We have example of Hon’ble Balkrishnan, (retired CJI) who is under scanner for corruption charges and no one can guarantee about the honesty of the person acting as PM. It is well said that "Power Corrupts and Absolute Power Corrupts Absolutely"

        The concept of sovereign immunity has evolved from the ancient legal maxim “King Cannot Do Any Wrong”. If we are following the same term blindly after hundreds of years then what are the benefits of DEMOCRACY??

        In short I believe that definition of Public Servant in Section 2 (12) of Proposed Jan Lokpal Bill (Anna's Bill) will NOT water down the powers of sovereign PM or Parliament or Judiciary…...