Hopelessly ineffectual and constitutionally suspect, the Lokpal and Lokayuktas Bill, 2011 is nothing less than a betrayal of national trust. It is inexcusable that a Bill, substantially weaker than the August 2011 version that was forced to be withdrawn on the widespread belief that it would be fortified in key areas, has been tabled in the Lok Sabha. The whole purpose of the exercise is supposed to be the creation of a strong, effective, and credible mechanism to go after corruption, especially political corruption, which has assumed monstrous proportions in India. The key provisions of the new Bill relating to the selection of the nine-member Lokpal, its anti-corruption functions and powers, and administrative control over India's premier criminal investigation agency mock that purpose.
In the first place, Section 4 of the Bill, which provides for a five-member Selection Committee to choose the chairman and eight other members of the Lokpal, gives the government political control over this process. Secondly, the separation of the power to enquire, investigate, and prosecute set out in the Bill is much worse than the scheme contained in the earlier Lokpal Bill, Section 20 of which gave the Lokpal its own investigation wing. In allowing the Lokpal only an Inquiry Wing headed by a Director of Inquiry “for the purpose of conducting preliminary inquiry into any offence alleged to have been committed by a public servant punishable under the Prevention of Corruption Act, 1988” and denying it its own investigation wing, the new Bill neuters the anti-corruption watchdog. Allowing the Lokpal “a Prosecution Wing headed by the Director of Prosecution for the purpose of prosecution of public servants in relation to any complaint by the Lokpal under this Act” may look like a step forward. But this cannot possibly make up for the failure to provide for a clean process of independent investigation that is safeguarded from executive interference. At a time when the Lokayukta in a State such as Karnataka has its own investigation wing – something it has used to very good effect – it is retrogressive to withhold this instrument from the Lokpal.
At the same time, the new Bill has sought to keep the Central Bureau of Investigation out of the Lokpal's purview ostensibly on the ground that it should have autonomy over its investigations. Given the agency's record of bowing to the diktats of its political masters, there is no reason to believe that investigations, even those that are Lokpal-referred and Lokpal-monitored, will be free of political interference. The Centre, which has retained administrative control (read: promotions, transfers, etc.) of the CBI via the Ministry of Personnel, knows better than most that he who pays the piper calls the tune. While the proposal that a new panel (comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India or his nominee) selects the Director of the CBI will go some way in enhancing the credibility of the agency, the opportunity to confer on it genuine independence is being lost.
Just as problematic is the constitutional validity of some basic provisions of the Bill. The inclusion of minorities among the groups given reservation in the nine-member body is bound to be challenged on the ground that it amounts to a quota being given on grounds of religion. While this issue has little bearing on tackling corruption, the deep and seemingly irreconcilable political divisions it has created, reflected in the manner in which it dominated the parliamentary debate on the Bill, is bound to have a bearing on its passage. Is this a ploy to let anti-corruption legislation fall victim to a wholly extraneous issue – reservation? Will it be allowed to degenerate, as in the case of the women's reservation bill, into a legislative exercise that everyone claims to support but few really want?
There have also been serious concerns on another constitutional front – federalism. While it is hard to fault the principle of having comparable mechanisms and instruments to go after corruption at the central and State levels, the legislative procedure adopted is open to question. Rather than mandating the creation of a Lokpal-like structure in every State, would it not have been in keeping with India's federal structure and regional sensitivities for the central legislation to have model or enabling provisions for constituting effective Lokayuktas in States? Given the strong national public mood against corruption, it is unlikely that State governments would risk going against it.
Unfortunately, the improvements in the new Bill have been overshadowed by the slew of regressive alterations. The inclusion of the Prime Minister under the Lokpal with certain exceptions is a step up from the earlier stipulation that permitted any inquiry only after he or she demitted office. The new Bill brings both Group ‘A' and ‘B' officers under the Lokpal's ambit. While this is short of Team Anna's demand that Group ‘C' and ‘D' officials be covered as well, it is an improvement on earlier drafts, under which the Lokpal's purview was limited to Group ‘A' officers. Further, while the ‘C' and ‘D' categories will be covered by the Central Vigilance Commission, cases relating to them will be reviewed by the Lokpal. The idea of granting constitutional status to the office of the Lokpal would have had traction had the Bill vested the body with the strength and self-sufficiency to make a serious impact on corruption. Unfortunately, a mixture of bad faith and a reluctance to loosen the grip on the handle of power have contributed to the making of a Bill that has caused deep divisions in Parliament and enough disenchantment to fuel a new round of Team Anna-led protests against the Centre. The country is no closer to a consensus on the Lokpal Bill than it was many months ago.