A comparison of the government’s draft Lokpal Bill and the Jan Lokpal Bill of Anna Hazare and other civil society members reveals that the likely areas of contention for the joint committee drafting the Bill will be the Lokpal’s power to entertain complaints directly from the public, initiate suo moto investigations with the powers of a police officer and order prosecution of the guilty
The first Lokpal Bill was passed in the fourth Lok Sabha in 1969, but it did not get through the Rajya Sabha. The bill was the result of the findings of the Sanathanam Committee for the prevention of corruption in 1966. Subsequently, Lokpal Bills were introduced in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and 2008. None of these bills were ever passed. Even for a leviathan bureaucracy and a moribund political class, this is an unparalleled record with regard to stalled legislation. Strangely, every political party has the setting up of Lokpal in its election manifesto. Yet the law never gets enacted.
Bowing to moral pressure from a fasting Anna Hazare, unprecedented public support and a hyper media, an obdurate government has agreed to a joint committee with civil society to draft the Lokpal Bill. It’s a far cry from actually having an effective Lokpal functioning in the country. And even this small step appears unpalatable to political parties and intellectuals who have been making noises about emotional blackmail, coercion, and the undermining of democratic structures! In a facile equating of democracy with electing representatives, civil society and its leaders are being portrayed as illegitimate interlopers and marauders in the sacred domain of the legislature.
The right to dissent and protest the decisions of elected representatives is integral to a functional democracy. The Constitution of India acknowledges this and guarantees, under Article 19(1) (b), the fundamental right to assemble peaceably and without arms. In the case of the Lokpal Bill, the government is on an even weaker wicket having failed to enact a law for over 40 years!
Today, against the background of the Commonwealth Games and 2G scams, civil society activists have drafted an indigenous Jan Lokpal Bill countering an ‘official’ bill drafted by the government. A comparative look at the Jan Lokpal Bill and the official Lokpal Bill may help clarify some issues.
The power to entertain complaints from the public, as also to suo moto initiate investigations, is crucial to the functioning of an institution designed to check corruption. The functioning of the Lokayukta in Karnataka clearly shows that elected representatives may be prevailed upon to set up an anti-corruption body due to public pressure and the exigencies of an election, yet they use every trick in the book to obstruct the independent functioning of the institution. Justice Santosh Hegde, the current Karnataka Lokayukta, resigned in despair in June last year not just because of lack of cooperation but the deliberate sabotaging of investigations by the state government. The state government went so far as to victimise honest officers assisting the Lokayukta solely because, under the Karnataka Lokayukta Act, the institution of Lokayukta and Uplokayukta can entertain complaints from anyone.
One of Justice Hegde’s key demands was for an amendment of the Karnataka Lokayukta Act, 1984 to give powers to suo moto initiate investigations. This was based on the experience that people are understandably hesitant to come forward and file a complaint against powerful bureaucrats and politicians for fear of retribution.
At first glance, the official government Lokpal Bill 2010 appears to say, under the proposed Section 12, that anybody other than a public servant can make a complaint to the Lokpal. However, this is hedged in by two provisos. The first prescribes that complaints against the Prime Minister can only be made to the Speaker of the House of the People; thus, the Lokpal can only take up the complaint if referred to by the Speaker. Likewise, the second proviso lays down that in the case of ministers and Members of Parliament, the Lokpal can only consider complaints referred by the Speaker of the Lok Sabha or Chairperson of the Rajya Sabha. In addition, the proposed Section 10 prohibits investigations into corruption with regard to the Prime Minister in matters relating to national security, maintenance of public order, national defence, and foreign relations. This would preclude investigations into, for example, the Bofors scam or even cases like the food-for-oil scam. There is no provision for suo moto investigations by the Lokpal.
The Jan Lokpal Bill, on the other hand, provides for powers to directly entertain complaints from the public as well as initiate suo moto investigations. In fact, the Karnataka government promised to confer suo moto powers on the state Lokayukta as part of the understanding when Justice Hegde took back his resignation.
Across the board, it is the bureaucrat-politician nexus which constitutes the crucial funnel through which public money disappears into private pockets. The money allocated for tribal sub-plans over the years (where tribals have remained impoverished) is a case in point, as are newer schemes like the Pradhan Mantri Grameen Sadak Yojana or the National Rural Employment Guarantee Scheme, or the 2G and Commonwealth Games scams.
Strangely, the ‘official’ Lokpal Bill does not cover bureaucrats; it is presumed that government servants will be investigated by the Central Vigilance Commission (CVC). Investigations into an offence must be comprehensive. Splitting investigations between the Lokpal (looking into the role of politicians) and the CVC (looking into the role of bureaucrats) will only stall matters.
The Jan Lokpal Bill covers ministers, MPs and government servants. The inclusion of judges in the mandate of the Lokpal, however, is hasty. Although the matter of judicial accountability is crucial for the efficient functioning of the justice delivery system, it requires further deliberation and, possibly, the setting up of a separate mechanism.
The monitoring of investigations into offences is not the role of the Supreme Court of India. The present trend of the apex court monitoring the 3G scam or the Hasan Ali case is an ad-hoc response to the absence of an independent investigating agency. This comes across strikingly in cases of custodial torture, rape and killing where the accused are police personnel. There is no investigating agency except the police. Lack of an alternative results in endless demands for a CBI inquiry. But the CBI does not have a separate independent cadre; officers from the police force are posted to the agency. Commissions of inquiry instituted into riots, firings and killings often end up being a fruitless expenditure of public money because of lack of powers to investigate. While the government’s draft Lokpal Bill does not engage with this important issue at all, the Jan Lokpal Bill introduces the legal device through the proposed Section 12 of “deeming” the chairperson, members and officers of the Lokpal to be police officers. In addition, it seeks to transfer the section of the CBI dealing with corruption to the Lokpal.
The problem of an independent investigating agency is complex. Under the system followed in India, judicial and investigation areas are distinct and separate. In some countries like France, investigations are supervised by a magistrate. We need to evolve a system where independent institutions like the National Human Rights Commission (NHRC) and Lokpal have separate independent cadres of trained investigators, instead of regular police officers, with no mix-up of judicial and prosecutory functions.
The bane of the Indian legal system as well as that of quasi-judicial bodies like commissions of inquiry is endless delay. When any mechanism, be it industrial tribunal or special court, is set up the stated objective is always speedy disposal. But the outcome inevitably is huge backlogs with matters taking years to reach a conclusion. Similarly, commissions of inquiry are set up for a period of a few months. But they go on endlessly, the recently concluded Lieberhan Commission being an example. The government’s Lokpal Bill sets a limit of six months, extendable to a year, for inquiry by the Lokpal; it is silent on the issue of the time to be taken for trial of a case. The Jan Lokpal Bill prescribes one year for inquiry and a further one year for completion of trial. Prescribing time limits is commonplace; the crucial question is adherence to the norms fixed.
In something of an anti-climax, under the government’s Lokpal Bill, the Lokpal, after due completion of inquiry, has to communicate the findings to the complainant, the public authority against whom allegations have been made, and the competent authority. The competent authority in the case of ministers is the Prime Minister; in the case of the Prime Minister it is the Lok Sabha. In the case of Members of Parliament, the competent authority is the Rajya Sabha or Lok Sabha depending on their respective memberships. With the present Prime Minister confessing to “coalition pressures”, the provision in the proposed law appears bland, and lack of power to the Lokpal to take action is striking. In contrast, in the Jan Lokpal Bill, the Lokpal has the power to initiate prosecution as well as order disciplinary proceedings against a government servant.
In a truly Kafkaesque twist, the government’s Lokpal Bill provides for imprisonment in case the complaint is found to be false and malafide, but gives no power to the Lokpal to punish the corrupt individual if the complaint is found to be bonafide and true!
The premise of the Jan Lokpal Bill, that the absence of a public redressal system is a major factor forcing people to pay bribes, is sound. The bill proposes the setting up of a citizens’ charter with each public authority specifying the time taken and individual officers responsible for various tasks. A structure of public grievance redressal officers for each public authority, and appellate grievance officers, is visualised. The attempt, though laudable, is somewhat ambitious; the task of public grievance redressal possibly requires a separate law. The government Lokpal Bill does not address the issue of grievance redressal and the connection with officials routinely demanding bribes.
The government Lokpal Bill restricts the composition of the three-member Lokpal exclusively to retired judges. The institution of Lokpal calls for moral integrity which need not be looked upon as the sole prerogative of retired judges. In fact, post-retirement appointments make judges vulnerable to government influence. There is a need to check this practice. In contrast, the Jan Lokpal Bill only rules out people who have been chargesheeted for a crime, those under 40 years of age, and non-citizens. However, the proposed 10-member Lokpal does seem unwieldy and could lead to a stalemate. The government Lokpal Bill has a selection committee consisting of the Prime Minister, law minister and home minister from the government, leaders and leaders of the opposition from both houses, and the Vice-President. Fortunately, the Jan Lokpal Bill does not have Nobel and Magsaysay awardwinners but has the Vice-President, Speaker of the Lok Sabha, two senior Supreme Court judges, two senior Chief Justices of the high courts, Chairperson of the NHRC, Chief Election Commissioner and other ex-officio members.
The Jan Lokpal Bill gives power to the Lokpal to provide protection to whistleblowers; the government Lokpal Bill does not include this provision. Similarly, the Jan Lokpal Bill has a specific provision for the recovery of money from those found guilty of corruption; the government’s draft Lokpal Bill is silent on this matter.
The composition of the selection committee for the Lokpal, providing protection to whistleblowers and prescribing a time limit for inquiry are possibly the easiest areas to reach common ground in the joint committee set up to draft the Lokpal Bill. The contentious substantive issues fall roughly into two categories. The first deals with the conferment of powers on the institution of the Lokpal to initiate suo moto investigations, entertain complaints directly from the public, enjoy the powers of a police officer for the purpose of investigation, and order the prosecution of those found guilty. The inclusion of judges and bureaucrats, the setting up of a public redressal system and the total prohibition of inquiry if it relates to national security, public order, defence and foreign relations in the context of the prime minister will be the second area of dispute.
The future will show whether the joint select committee comprising government and civil society representatives displays enough wisdom to avoid a stalemate and come up with workable legislation for the setting up of an efficient, effective Lokpal to check widespread corruption in the country.
