A few major provisions of the Government Lokpal Bill make for a ticking time bomb. It is better to have no Lokpal rather than have the one envisaged by the government.
There is unanimity of opinion that corruption at the higher levels of governance can be fought by a strong, credible, effective and independent Lokpal mechanism. As far back as 1979, the Supreme Court, speaking through Justice V.R. Krishna Iyer, observed that “corruption and repression — cousins in such situations — hijack developmental processes.” President Pratibha Patil, in her Independence Day-eve speech, lamented that “corruption is a cancer affecting our nation's political, economic, cultural and social life. It is necessary to eliminate it.” In his Independence Day speech, the Prime Minister expressed the need for “a strong Lokpal to prevent corruption in high places.”
The major flaw
In the Indian system of governance, a fundamental flaw is that it is impossible for the Central Bureau of Investigation, the premier anti-corruption investigative agency that is subordinate to the Prime Minister's Office (PMO), to even commence an inquiry or investigation into allegations of corruption against the higher bureaucracy — which often acts in concert with the political executive — without the prior approval of the Central government under Section 6A of the Delhi Special Police Establishment Act. Thus, the CBI is unable to enforce the postulate laid down by Chief Justice J.S. Verma in the Jain Hawala case: “Be you ever so high, the law is above you.”
The golden key to combating corruption is to fashion an anti-corruption police force completely independent of the executive.
Government Lokpal Bill
In the short space of an article, one can only highlight and emphasise a few major provisions which are insidious and malignant in the Government Lokpal Bill. Unless these are dropped, the Bill will be a ticking time bomb. It is better to have no Lokpal rather than have the one envisaged in the government Bill.
Appointment of Chairperson and other members
The structure of the Government Lokpal Bill is such that it gives a dominant and preponderant voice to the political executive in the selection of the Lokpal (Chairperson and members).
The Selection Committee (Clause 4) consists of the Prime Minister (Chairperson); the Speaker of the Lok Sabha (normally appointed by and owing allegiance to the ruling combination); a Union Cabinet Minister nominated by the Prime Minister; and one eminent jurist and one person of eminence in public life, both nominated by the Central government.
Thus, in a nine-member Selection Committee four will be nominees of the government, and one the Speaker of the Lok Sabha, all enjoying the confidence of the ruling party. The other four members are Leaders of the Opposition in the Lok Sabha and the Rajya Sabha, a sitting judge of the Supreme Court and a sitting Chief Justice of the High Court — both nominated by the Chief Justice of India. How will such a committee inspire public confidence or ensure a credible and independent Lokpal mechanism?
As against this, the Jan Lokpal Bill (Version 2.3) provides for a Selection Committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, two judges of the Supreme Court and two permanent Chief Justices of the High Courts selected by collegiums of all Supreme Court Judges (four judicial members in all), the Comptroller and Auditor-General, the Chief Election Commissioner, and all previous chairpersons of the Lokpal.
It means a total of two politicians, four superior court judges, the CAG and the CEC. Surely, such a Selection Committee would inspire greater public confidence. The stranglehold of politicians representing the ruling combination in the Government Lokpal Bill is a highly malignant provision that requires to be summarily dropped.
Exclusion of Prime Minister
In an earlier article (The Hindu, July 1, 2011), I argued that the Prime Minister should be under the Lokpal. Article 361 of the Constitution grants immunity from criminal proceedings only to the President and the Governors (earlier the Raj Pramukhs) during their term of office. No immunity from criminal or civil liability has been granted to the Prime Minister. Thus the basic structure of the Constitution negates and denies any immunity to the Prime Minister.
Procedure and opportunity to suspected accused
Clauses 23 to 29 completely undermine the provisions and procedures under the Code of Criminal Procedure which apply to all crimes, including crimes committed under the Prevention of Corruption Act, 1988. Under the normal procedure, the police have the power to investigate, gather physical and scientific evidence, interview and interrogate individuals who can assist the investigation and, thereafter, furnish their final report to the appropriate court under Section 173 of the Code. It is then for the court to either frame charges against the potential accused or discharge them. During the investigation and the final report (popularly known as the charge sheet), there is no question of giving any opportunity to show cause or disclose to the accused the material or the evidence collected.
Under Clause 23, an opportunity to be heard, and a copy of the complaint and material collected, are to be given to the suspect at several stages before the completion of the investigation. Under Clause 24, inspection is to be allowed to the suspect when an investigation or inquiry is “proposed to be initiated by the Lokpal.” Similarly, under Clause 25, an opportunity to be heard is to be given to any person “other than the prospective accused.”
These provisions are bound to undermine effective investigation and collection of evidence. The prospective accused will act as an active terrorist to destroy the Lokpal's efforts. Apart from going for judicial review at every stage, alleging lack of adequate opportunity to be heard, the potential accused, after inspection of the material, would have the opportunity to approach witnesses, intimidate or corrupt whistleblowers, and fabricate evidence and interfere with the investigation. These provisions are a ticking time bomb which can be detonated by the prospective accused at a time he chooses.
Inclusion of NGOs as public servants
Clause 17 of the government Bill and related clauses expand the definition of “public servant” to include non-governmental organisations/ societies/ their office-bearers who receive donations from the public. Even autonomous NGOs not controlled by the government but aided by it are brought within the definition of ‘public servant.' This is the most mischievous provision with a view to harassing, intimidating and blackmailing NGOs/societies and their office-bearers who are the principal activists and whistleblowers under the Right to Information Act, and who are leading the movement for an effective Lokpal to curb corruption at the highest levels. These NGOs are liable under the normal criminal law and should be excluded from the definition of ‘public servant.'
Investigative machinery and prosecution wing
Under the Constitution, there are checks and balances on the political and bureaucratic executives. Broadly they are the judiciary, the CAG, and the CEC. Members of the higher judiciary, the CAG and the CEC cannot be removed by the political executive except by impeachment. This secures for them an independence from the executive which enables them to invalidate, audit and check the excesses of the executive. However, the anti-corruption machinery as indicated above is completely flawed.
It is essential that either the anti-corruption branch of the CBI be transferred immediately to function under the Lokpal mechanism so that it is completely free from executive interference, or the entire CBI be brought under the Lokpal mechanism and be made subordinate to it.
Once the investigative machinery is put in place under the Lokpal, it should be a separate ‘cadre' and none of its members should go back to or be transferred to any Central or State cadre or other investigative organisations. In substance, the Lokpal and the investigative machinery should be totally insulated and independent of all outside interference, influence, favours and patronage. If the CBI is not under the Lokpal, turf wars and jurisdictional disputes between the CBI and the Lokpal will lead to litigation, scuttling the efficient working of the Lokpal.
Unless these fundamental flaws are eliminated, it is best to scrap the Government Lokpal Bill and continue with the present system because the remedy would be worse than the disease. The Lokpal as contemplated by the government will be misused by the executive to silence the anti-corruption movement. The efforts of civil society led by Anna Hazare will come to naught.
Compromise, accommodation and give-and-take are essential to work a successful and vigorous democracy. In conclusion, remember what Mahatma Gandhi said: “All compromise is based on give-and-take, but there can be no give-and-take on fundamentals. Any compromise on fundamentals is a surrender. For it is all give and no take.”
(Anil Divan is a Senior Advocate, and president of the Bar Association of India. e-mail: abdsad@airtelmail.in)
Keywords: Lokpal Bill
I am doubtful lokpal bill will pass in winter secession.Though government place lokpal bill in parliament there is no grantee all parties will support it.Another problem is stand committee place revised lokpal bill or place it Janlokpal bill of Anna?Idonot think standing committee place janlokpal bill. How Anna will respond?
I think if we have the will then corruption can be contained even with existing laws. Lack of will is the issue. Look how the Kiran Bedi excess travel claim was dug out. If we apply the same will without being selective,then we can shame the corrupt political class. Will the Jan Lokpal bill succeed in creating this will!
Good points. Hope to see the standing committee and the government keeping their word and coming up with a strong lok pal bill.
Mr. S.Kumar : You said and I quote "The corrupt officials are surely not going to prosecute themselves" Now the question is when you create JANLOKPAL, who will be running the show,will there not be " officials"? what gurantee do we have they will not be currupt. Believe me I am against corrupption. no one disputing corruption must be erradicated. Dispute is about the means and method.
Yeah! There are laws to punish every kind of crime. No separate laws are required to declare any crime as punishable. But alas what is to be done that even getting registered an FIR is a big job, if the other party happens to be even a local leader. And what will be its fate, if the other party is a burocrat or a politician of ruling party and where the investing authority needs the permission of the political boss ruling the govt. It might be necessary to collect all such cases where the cases are pending for approval of the political bosses and append the same to the Janlokpal bill.The judges of the courts.CEC and C&AG are all independent constitutional authorities.Can anyone term them parallel govt.Why only Lokpal is to be termed parallel govt. There can be reasonable checks and balances on his power.It is always necessary to remember that the govt is there for the welfare and ustice of the people of the country and not vice versa.
I remember our respected prime minister saying that his government doesn't possess a magic wand to end corruption.What's required is a strong will to fight corruption as it has polluted the very roots of our society.People have lost faith in system. We all are victims to it,we lament,yet we never reach a consensus. Government's lokpal bill is ineffective and lacks rationality. The need right now is to make lokpal bill as strong as possible,with CBI under its purview.
I totally agree with with S. Kumar and I too am amazed when people say 'Government is correct and that no change is required.' I strongly believe if people do not support Anna now, and allow this opportunity, which has arisen after four decades to be lost and the status quo will continue. That would mean giving a licence to those who thus far have exploited their powerful positions to feather their own nests by all means possible. Not only would they continue with their practices; they would also increase their activities with such greed and vengeance the like of which one is even afraid to imagine. To stop this moral decadence which has set in and to eradicate the termite of corruption that is nibbling away the very fiber of Indian Society, India needs a strong lokpal bill.
Mr Prem: The only thing you have managed to show with your "vitriolic and charged comment" is that you have no idea whatsoever about what you are saying. You claim that the GOI cowered to "public pressure", and then you claimed that this "public" doesn't represent the whole country. Who doesn't it represent? Those who don't think twice about committing fraud and grand larceny while alleging that they are running the country?
You have offered that the CBI is "technically" independent of the PMO. Well, "physically" they have to seek the PMO's kind permission to initiate any action against the select club. You want proof? Seasoned criminals never leave any.The civil society bill called for a lokpal free from political stranglehold and you seem to find it stupid. The "GOI version" is essentially a paper tiger with no real powers. I could go on but I've run out of words.
The performance records of the learned and honorable judges as the heads of the state chapters of the National Human Rights commission do not inspire confidence. Sri Divan's leaning towards inclusion of several judges in the same committee does not inspire confidence. His leaning for the inclusion of judges is quite understandable, as he belongs to the legal fraternity. I graduated from a Medical College in 1960, and some times I tend to believe that all non-physicians are essentially uneducated. Also his contempt on politicians. Admittedly too many candidates for being elected in the legislative bodies spend limitless amounts of money with the motive of extracting more money. I wonder, though, if the legal community as a whole is more ethical and honest than the legislators or political workers. Please do not accept this note as an evidence of spite or meanness. Many in the medical community too are sources of embarrassment to me.
Mr. Divan seems to be biased towards promoting the so called 'Jan Lokpal' bill. What is the necessity to have ex. chairpersons of the lokpal to be on the selection committee? This seems to be an attempt by the so called crusaders of corruption to wrest control of the country from political executive completely. One must have provision for the chairperson of Lokpal is, maximum age limit and minimum educational standards. Otherwise, there will be puppets sitting at the helm and levers controlled by the "crusaders of corruption" Why not NGO be under the ambit of Lokpal? Is the Jan lokpal team scared that the Frankenstein created by them will come back and haunt them? Mr.Divan seems to be very biased when he tries to say that NGOs even aided by Government money should be outside the purview of Lokpal and be investigated under Criminal Law. - SIMPLY RIDICULOUS.
Reading some of the first few comments, I feel astonished that even
after so much corruption and little respite, there are people who
think that the Govt. is correct !! I am surprised that people think
that Anna is blackmailing the govt. I am surprised that people still
think that we should be doing "an analysis" (lets just keep appointing
commissions by erudite people so that their 700 page reports might sit
next to Shakespeare in a library) of the entire situation or that the
CBI is independent of the govt. !!
Most important of all, I don't understand what the respected
commentators mean when they say that we have enough laws but we need
to implement them properly. Really !!! Implement them properly ??!
And who is going to do that, might I ask ? The corrupt officials are
surely not going to prosecute themselves. A Raja is not going to say :
"Look, I violated the laws of country. Let me go to Tihar jail and
perform penance".
Why nobody is asking the fundamental question: Why do we need a separate institution to ensure that the governance is corruption free? Why cannot our elected representatives be taken to task, using the current systems and provisions, for their willful omissions and commissions? What is really required is a free police so they can work effectively with no fear or favour. Adding antoher law and having no sincerity of purpose is not going to change the status.
The NGOs must be under lokpal bill.No body is above the country.On one you are arguing that PM should brought under bill,than why are u affraid to bring NGOs. I would prefer more strick rules for NGOs.Should be more scrutiny for NGos.
I have read many comments by various people about Anna Hazare and his agitations for a strong Lokpal Bill to curb the greatest menace of Corruption.Majority of commentators have questioned the method of agitation and they feel Anna Hazare is blackmailing the Government and questioning the Parliamentary system and Constitution.I have only one question for these commentators.Do they accept there is huge corruption in the country and it was due to a deliberate weak legislations and also corrupt elected governments with discretionary powers aided by corrupt bueraucrats,influenced by so called Business community with out their help no elections are possible.Naturally they need a system by which Black money could be generated.This is what has happened during the last fifty years. Congress with their allies are ruling most of the period.Congress and BJP cannot escape their responsibility of rectifying this huge problem.Nearly fifty percent of the Population are affected by this corruption .
Everybody agrees that the present anticorruption mechanism is not working. In order to remedy the deficiencies and put in place a robust and efficient agency, the first step should be a thorough analysis of various aspects of failures (past and present) of the current system. Such analytical case studies would enable the law makers to identify the reasons for the abject failure of the law enforcement agencies. Without such a rational approach the present mudslinging will go on while the country suffers from the cancer of corruption and moral decline. A part from Mr. RK Raghavan, former CBI director, there has not been many contributions in this direction. It looks as though the noble cause of anti-corruption is being hijacked by vested interests.
I still don't understand why we need a separate structure / system / law to pursue Corrupt. If the existing system and laws have flaws, it is better to rectify them than trying to create a completely new structure / system that pursues only Corrupt. On that token, we should have similar structures / systems for tackling Child Infanticide, Rapes, Domestic Violence. Are we saying that these are less important than Corruption ? Don't equate Lokpal to Election Commission. EC is there for a particular reason - to conduct fair elections. Lokpal will be just one more investigative agency with all the bureaucratic controls. Why not empower CVC and CBI to effectively control the corruption at all levels ?
Inclusion of NGOs as public servants,they should be excluded from the definition of ‘public servant.'Anna team,s opposition to this clause as told by Mr. Diwan is not acceptable. When we are talking of corruption, it should include the society also, that is the public also, including the NGO, corporates, media etc.Because they are influencing the govt and when things go wrong they point it to the govt.
In a game if we have two ball each for one team, no one will ever loose and surely, each one will try to prove their ball is original.This is what, Lokpal drafting committee have done, both Civil Society and Government playing with their own versions of the bill rather they are in same game of curbing corruption.I suggest, they must sit together again and draft just one version of the bill and make that law. This is only way common man can enjoy it, Otherwise game will never get over.
Lokpal or Jan Lokpal both have clauses which will lead to running of a parallel goverment in the country.The emphasis under both first should be on curbing corruption at it's origin i.e lower bureaucracy and the provision of keeping a tap also over the Lokpal should be made.
The present exercise in making a new law the so- called LOKPAL is wastage of time and valuable energy.The present system is excellent.THE flaw lies in the implementation due to lack of will and determination,if at all anything.The proof is visible in the action taken in the cases of 2G, CWG, ADARSH, Illegal mining etc.A democracy cannot be successful if the government of the time has to consider the opinion of each and every citizen.Oppenion has to be of collective and representative in nature and that is how the parliament becomes the central and absolute forum. The strength of a government lies in the support and discipline of its people, especially when there are internal antinational elements as well as external threats are looming large over its head.The agenda of any opposition party at any time shall not be to topple the government, but to guide, criticize and navigate in the process of law-making and governance.
The absence of a strong Lok pal bill has resulted in many scams at the Centre. Without the Lok ayukta in Karnataka, the mining scam would not have been exposed. The CBI is now under the control of the central government. In the initial stage the CBI sat over the 2G file for over one year under pressure. Had the CBI been an independent body this would not have happened. So there is a strong necessity for the establishment for an independent inquiry body, so too a strong Lok pal bill and Lok ayukta in the states.
With great respect to the Senior Counsel and President of the Bar Association of India , my humble request to him is to submit his valuable opinion on the few major provisions of the Government Bill to Standing Committee of the Parliament in writing if not sent already . Your opinion published now gives me an impression that the Standing Committee has recommended the Government Bill with the provisions pointed out as malignant . Only if the Draft Bill with the recommendations of the standing committee of the parliament is published in the Hindu it may through much light on the Lok Pal Bill .
I liked only one comment by the author on the last section quoting the Mahatma nothing else.Mr.Divan seems to be part of the Hazare's so called movement so cannot give an unbiased view on the whole issue so I disagree.Why I don't like the article, first facts are not stated, CBI acts under CVC which is a constitutional body not under PMO (technically).PMO should assist only on bureaucratic work for the CBI nothing more.Next, comparing government's version of the bill and version of so called "Hazare's team" is ridiculous.This government was stupid enough to call for a joint drafting committee cowering under public pressure who did not represent entire country.Then come out with a ridiculous version of the bill and the football match started the ball being "allegations". The whole exercise was stupid and GOI surrendered its fundamentals. I do not agree on the premise of running a parallel government in this country in the name of lokpal.
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