Neither Lokpal Bill is entirely satisfactory; what is needed is an intelligent meld of both, and a little more besides.
Morparia says it all
Our existing systems for tackling corruption are catastrophic failures. Prosecuting public servants needs prior sanction. It seldom comes. Prosecutions drag on for years. Relative to the (intangible) result, the effort is monumental. If the comparisons to cancer are accurate, is the solution to administer a mild sedative and only address the symptoms, which is what many say is all that the Government Lokpal Bill does, or is it to use a treatment many feel is so severe that it risks killing the body, the charge made against the Jan Lokpal Bill? In a time to heal, we must have something effective but not fatal.
How do the two bills differ and where do they accord? The second is easier. Both agree on the establishment of a separate authority, the Lokpal, to investigate instances of corruption.1 In both, the Lokpal has investigative and prosecutorial powers,2 and there are Special Courts to fast-track corruption cases.3 Most importantly, both do away with the prior-sanction requirement.4 In itself that is a huge step forward.
The divergence in other areas is very wide. First, what is to be investigated and what is the definition of “corruption”? Narrowly tailored, the government bill limits itself to offences under the Prevention of Corruption Act, 1988 (PCA) by including these in the definition of a ‘complaint’.5 The broader Jan Lokpal Bill also includes offences relating to public servants under the Penal Code; kickbacks, victimizing whistleblowers and something called “repeated violation of a citizen’s charter by any public servant.”6 That is perhaps too fuzzy. Every “public authority” must prepare a specific “citizen’s charter” to “enumerate the public authority’s commitments to the citizens”.7 A public authority is any authority, body or institution of “self-governance” established by the Constitution or any law or notification.8 What this “charter” is supposed to mean is anybody’s guess; and failure to prepare it will invite the Lokpal’s wrath. The definition is crucial and needs work on both sides. There are important areas of public and civic governance that are beyond simple bribery. How are these to be included? The government’s intention is made plain right at the beginning: the Lokpal is established “for the purposes of making inquiries in respect of complaints made under this Act.”9 Only inquiries? Nothing else?
On the selection of Lokpal members, the government’s draft is far too restrictive. From the selection panel of nine, only one is drawn from public life, and all nine are government nominees.10 Four are “judicial members”—Supreme Court judges or High Court Chief Justices, or persons of such high qualifications that perhaps only three in India might qualify.11 The Jan Lokpal Bill has a broader base: 11 members including the Chairman, four of whom must have a legal background.12 The Selection Panel includes the PM, the Lok Sabha’s Leader of the Opposition, two SC judges, two Chief Justices, the CEC, the CAG and all previous Lokpal Chairmen.13 The selection is made from a pool prepared by a Search Committee.14 Some of the eligibility criteria are vapid but their deletion will not affect the integrity of the bill.15
The government Lokpal Bill limits itself to ex-Prime Ministers, Union Ministers and MPs and Group “A” officers,16 the principal officers of government boards and companies and government-aided societies and trusts. The complete exclusion of Group “B” officers is inexplicable for these include mid- and lower-level officers in the postal services, excise, customs, health and Union Territory administrative and police services. These are the ones who most often interface with citizens and it is here that corruption is most rampant. The Jan Lokpal Bill goes to the other extreme: it also includes the higher judiciary and that, to my mind, is a potential disaster, for no judge can ever function independently with the Lokpal’s crows sitting on his shoulders.17 Worse: the Jan Lokpal Chairman can only be removed by the Supreme Court, whose judges the Jan Lokpal will investigate and prosecute.18
The trickiest area is the Lokpal’s functioning. Under the government’s Bill, the Lokpal can prosecute public servants in special courts, and recommend disciplinary action against MPs and Group A officers.19 For Union Ministers, the Lokpal’s report must be tabled in Parliament; but the Lokpal is then merely to be informed of the action taken or proposed.20 If one bill does not go far enough, the other goes too far. Under the Jan Lokpal Bill, not only can the Lokpal investigate and prosecute but it can directly impose penalties including fines and jail sentences (up to life).21 For this, it has a parallel judiciary with benches of judicial officers.22 There is no justification for this or for its particularly nasty provisions for sanctioning wiretaps;23 and it is no answer to say that at present this is being done by some Home Department. Wiretaps without judicial supervision are unacceptable intrusions into citizens’ civil liberty regardless of who authorises them.
As a panacea, the Jan Lokpal Bill generously offers citizens protection under Article 226 of the Constitution, under which High Courts can enforce fundamental rights.24 That power exists whether or not the Jan Lokpal Bill says so; and it cannot be granted or taken away. Consider the consequences: if at some later date, that clause is amended or deleted, can a High Court no longer issue a writ even if the Lokpal’s orders violate fundamental rights? The power of judicial review, some 300 plus years old, needs no re-affirmation by the spokespersons of civil society.
The Jan Lokpal Bill forbids government officers from working in any capacity with anyone with whom they had official dealings.25 That is absurd, and is also based on the assumption that every bureaucrat is, of necessity, corrupt. Bureaucrats deal with a large number and variety of persons and entities in their careers. The retirement age is relatively early. What are they to do after? On this definition, they cannot even work for the Lokpal itself.
The Jan Lokpal Bill proposes a takeover of the CBI’s anti-corruption wing.26 Given the enormity of its powers and given that they lie almost entirely outside a constitutional mandate, this is dubious. The CBI needs autonomy, and the Lokpal should certainly be able to draw on its resources. But to make it subservient to the Lokpal is to replace an elected representative by a person merely nominated, unanswerable to any electorate.
Neither bill seems to reach the common man; neither focuses on the removal of bureaucratic discretion. We encounter corruption in small things: the refusal to provide adequate drains or garbage collection services or to issue permits and licenses, harassments by excise and customs officers—any number of things. To bring any of these to the Lokpal, you must show that there is some corruption, material that is almost impossible to get. You must then grind through some form of legal system, following impenetrable procedures and meeting tough evidentiary standards. Corruption is fraud, and fraud is concealment; and therefore almost impossible to “prove”. Without rational changes to procedural and evidentiary law little can be achieved in practice.
This is tied to the question of false complaints, on which the government Bill is punitive,27 the Jan Lokpal bill markedly less so: it is not to be held against a complainant “merely because a case could not be proved”.28 This bill therefore assumes that all complainants are, by definition, honest and so lends itself to immediate abuse. Without fear of reprisal, complaints will flood the Lokpal, often for reasons that are themselves corrupt (eliminating competitors in a tender bidding process, for example). A cleverly worded yet false complaint is enough to trigger the Lokpal’s investigative wing, a vast army of the incorruptible with enormous powers of raid, seizure and search. It is one thing to make proof and procedure simpler; it is another to dispense with it without consequences.
Idealistic (and therefore foolish) presumptions make for bad laws; a corrupt democracy should not be replaced by a potentially corrupt autocracy. The answer is in neither draft but somewhere in between.
As there are several versions of the bills on different websites, this article refers to the latest ones available on the Ministry of Personnel website.
§3(3)(b).— “A person shall be eligible to be appointed.—(b) as a Member other than a Judicial Member, if he is a person of impeccable integrity, outstanding ability and standing having special knowledge and expertise of not less than twenty-five years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law, and management.” ↩
Ch.II, §4(2) and 4(5). Legal background is said to be having been a judge for 10 years or an advocate of the Supreme Court or High Court for 15. Bhushan père et fils qualify. ↩
§2(l). The Jan Lokpal Bill imports in its entirety the definition of a public servant from the PCA and that includes judges. To be read with Ch.VII, §17, which says that, along with the PM and other Ministers and Ministers of Parliament, a High Court of Supreme Court judge can only be investigated and prosecuted with the previous permission of seven members of the Lokpal Bench. ↩
§8 and §29(12). The second section repeats the first.
8. For the purposes of investigation of offences related to acts of corruption, the appropriate Bench of the Lokpal shall be deemed to be designated authority under Section 5 of the Indian Telegraph Act empowered to approve interception and monitoring of messages of data or voice transmitted through telephones, internet or any other medium as covered under the Indian Telegraph Act read with Information and Technology Act 2000 and as per rules and regulations made under the Indian Telegraph Act 1885.
§12. This limits the writ jurisdiction of High Courts and simply can’t be done. It violates the basic structure doctrine; and the provision for an automatic lapsing of any stay really means that the judiciary, even in its plenipotential powers under the Constitutions, is subservient to the Lokpal.
12. Any orders passed by any bench of the Lokpal or any officer of the Lokpal shall be subject to the writ jurisdiction of the High Court under Article 226 of the Constitution of India. Ordinarily, High Courts shall not stay the order. However, if it does, it will have to decide the case within two months, else the stay would be deemed to have been vacated after two months and no further stay in that case could be granted.
49. (1) Notwithstanding anything contained in this Act, whoever makes any false and frivolous or vexatious complaint under this Act shall, on conviction, be punished with imprisonment for a term which shall not be less than two years but which may extend to five years and with fine which shall not be less than twenty-five thousand rupees but which may extend to two lakh rupees.
30. (1) Notwithstanding anything contained in this Act, if someone makes any complaint under this Act, which lacks any basis or evidence and is held by Lokpal to be meant only to harass certain authorities, Lokpal may impose such fines on that complainant as it deems fit, but the total fine in any one case shall not exceed Rs one lakh. …
Provided further that merely because a case could not be proved under this Act after investigation shall not be held against a complainant for the purposes of this section.
Our existing systems for tackling corruption are catastrophic failures. Prosecuting public servants needs prior sanction. It seldom comes. Prosecutions drag on for years. Relative to the (intangible) result, the effort is monumental. If the comparisons to cancer are accurate, is the solution to administer a mild sedative and only address the symptoms, which is what many say is all that the [Government Lokpal Bill] does, or is it to use a treatment many feel is so severe that it risks killing the body, the charge made against the [Jan Lokpal Bill]? In a time to heal, we must have something effective but not fatal.
: http://www.persmin.nic.in/Lokpal/DraftLokpalBill2011.pdf "Draft Lokpal Bill 2011 (as on 21/06/2011)"
: http://www.persmin.nic.in/Lokpal/DraftJanLokpalBill.pdf "Draft Jan Lokpal Bill 2011 (as on 21/06/2011)"