In six months, we have gone from a plausible model for the Lokpal to one that lacks the teeth needed to fight corruption at the highest levels.
Last August, the Lokpal was within sight. Anna Hazare, with media help, had galvanised visible and vocal support. The UPA government had accepted several demands of his and put out a Bill which provided for a Lokpal with full powers of investigation and prosecution, and focussed on the top rung of Ministers, legislators and bureaucrats. Special Courts were to be set up to conclude cases within a short time frame, punishments were stiff, and assets gained through corruption were to be recovered. While differences remained on whether the Lokpal would cover lower level officers and enforce Citizen Charters, it seemed that the expression of the sense of Parliament would tide over these.
Unfortunately, the new Lokpal-Lokayukta Bill of the government is a great leap backward.
First, the Bill is retrograde on the relationship between the Lokpal and the Central Bureau of Investigation, the country's premier investigative body. Earlier, it was provided that the Lokpal would have its own investigative arm and total control over investigation. Now the government retains administrative control over the CBI including transfer, postings and promotions. This means that every officer of the CBI is looking to the government for career advancement. Given that the major thrust of any anti-corruption Bill is against those in power, we have a situation here where the potential accused, or persons allied to them by party or pelf, are in control of the investigators.
Few aspects strike at the root of the Lokpal concept as this one. Investigation is the foundation of any case, and the independence of the investigation team makes all the difference. There is no shortage of critical comment by the Supreme Court about the CBI being under the umbrella of the executive. Even the provision that the Lokpal has superintendence over the investigative body comes with a circumscribing rider that no direction can be given to investigate or dispose of any case in any manner. Now to leave the CBI unfettered to reach its conclusion is appropriate, but forbidding the Lokpal from, for instance, asking the CBI why it has not examined A. Raja in the 2G scam seems odd. In that case, as in many others, it was the monitoring hand of the Supreme Court that made the CBI cast its net for the big fish. Surely, a Lokpal specifically designed and chosen to fight corruption should have no less power.
The portions of the Bill relating to investigation are counterproductive to the object and purpose of the legislation. They require recasting; either the CBI's anti-corruption unit should be brought fully, administratively and functionally, under the Lokpal, or this body should have its own cadre of investigators and the CBI should keep away from corruption cases.
Another controversy is about the inclusion of Lokayuktas for the States along with the Lokpal in the Bill placed before Parliament; this is said to violate the federal principle of division of powers between the Centre and the States as provided in the Constitution. The division of legislative power in the Seventh Schedule to the Constitution is threefold — List I is for the Centre (the Union List), List II for the States, and List III is the Concurrent list where both may legislate, with the rider that parliamentary enactments will override State laws where there is a conflict. The objectors claim that Lokayuktas can only be created by the legislature of each State since only it has jurisdiction over Ministers and officers at the State level.
However, this claim can be trumped by Article 253 of the Constitution, which says that where Parliament makes a law for the whole or any part of India to implement an international treaty or a decision made at any international conference, such law will hold good even if it transgresses the federal division of legislative power. The Lokpal-Lokayukta Act is expressly made in pursuance of the United Nations Convention on Corruption, which obliges ratifying States to put in place measures to criminalise bribery and create effective mechanisms for enforcement. India ratified the Convention on May 9, 2011. Thus a comprehensive law for establishing institutions for fighting corruption at the Centre and the States level would be within the legislative competence of Parliament.
A similar enactment is the Protection of Human Rights Act, 1993, passed in conformity with obligations undertaken by the country under the International Covenant on Civil and Political Rights and the International Covenant on Social and Cultural Rights of 1966. That Act covers the country as a whole by setting up Central and State Human Rights Commissions; it was passed as one statute by Parliament. Even otherwise, it is arguable that Entry 1 in the Concurrent List is Criminal Law, and that the Lokpal is meant to enforce the Prevention of Corruption Act, 1988, which is a parliamentary statute criminalising corruption throughout the country and providing punishments irrespective of whether the offence is committed in relation to the Central or State government. The CBI, too, is in the Union List. Further, where a legislative subject is not covered in any of the Lists, it falls to the Union under the residuary entry 97 in List I. Thus there is sufficient legislative bandwidth enabling the Union legislature to enact an anti-corruption Act with nationwide coverage. As an aside, one wonders whether the objectors, mainly regional parties, are acting from lofty constitutional principles or simply resisting tough anti-corruption bodies in their respective States.
Anther concern is skewed composition of the Selection Committee which gives the powers-that-be the right to choose the policeman who will police them. Then there is the 50 per cent representation to the Scheduled Castes and Tribes, OBCs, minorities and women. While reservation to advance educational or employment prospects has a rationale, what nexus is there between corruption and caste, gender or religion? Will this mark the start of representation on high executive, quasi-judicial and judicial bodies — the CBI, the Reserve Bank of India, the Union Public Service Commission, the Election Commission, etc.? And why bring NGOs under scrutiny here when they are not part of the governance structure and action can be taken against them under other statutes? Will this not dissipate the resources of the Lokpal?
What should be done now? Civil society anti-corruption fighters should close ranks; Team Anna should be less proprietary and should realise that one Lokpal covering all government servants and Citizen Charters makes it gargantuan, excessively powerful and unwieldy. Civil society should put down the non-negotiable demand of a tough and fully empowered Lokpal with full control over investigation and prosecution of the top-rung of governance, and for one Act to operate nationally. It should resist reservation in the Lokpal, but relent if necessary, and leave it to the Courts to rule on the legality of this reservation. Lower-level corruption can be handled by the CVC and a separate body can implement Citizen Charters, giving the Lokpal supervisory and advisory roles here. The fundamental adage in negotiation is that the best is the enemy of the good — an insistence on all or nothing usually results in getting the latter. India needs to get moving on the road to fight corruption, even if the highway is only six-lane and not eight.
(Sriram Panchu is a Senior Advocate. firstname.lastname@example.org)