The Lokpal and Lokayuktas Act, 2013 is complicated. This could perhaps not be avoided, given that what was being attempted was a new and bold experiment to pull the anti-corruption campaign out of oblivion. This law was badly needed, if only to lend a modicum of credibility to the process of enhancing the accountability of those in high places, who were cocking a snook at all efforts to demonstrate to the world that India is not second to any other nation in making its public administration clean and fair.
Surprisingly, the appointment of India’s first Lokpal has not been received with great excitement. The preoccupation with the general election of all those likely to be affected by the Act may perhaps explain the apathy. Nevertheless, the working of the Act may be expected to be closely followed in the months to come, both by the polity and the legal fraternity, which is how it ought to be in a vibrant democracy.
The corruption of public servants in India has become such a menace that something drastically new had to be tried, and appointing the Lokpal at least partially meets this crying need. There is guarded optimism in a few quarters, and considerable cynicism in others, over the likely efficacy of the Lokpal. However, any high expectations that the new mechanism against corruption will measurably transform the scene seem misplaced.
Actors against corruption
There are now three principal actors at the national level in the fight against graft: the Lokpal, the Central Vigilance Commission (CVC), and the Central Bureau of Investigation (CBI). Some people have misgivings over the independence of the Lokpal. They wonder how it will work with the other two so that the objective of cleansing public life is achieved with reasonable satisfaction. Some critics allege that the Lokpal’s composition was dictated solely by the establishment led by the Prime Minister. But what about the Chief Justice of India, or his nominee, another important member of the Selection Committee? Casting aspersions on the neutrality of the highest judicial authority in the country is unacceptable unless one can prove with reasonable material that he acted in a biased manner in choosing the first Lokpal.
The decision of the ‘special invitee’ to stay away from the process on the ground that he was a mere invitee and not a full-fledged member of the Selection Committee is regrettable. The accusation that the process of selection of the Lokpal was not transparent falls flat if someone in the Opposition abstains from participating in the Committee’s decision and denies himself and the nation the chance of knowing and evaluating how open-minded or not the other members were in choosing the members and chairperson of the Lokpal.
Jurisdiction issues
To my mind, what is worrying is how well the CVC and CBI are going to play a complementary role in upholding the objective for which the Lokpal has been appointed. The Lokpal has jurisdiction over Group A and B public servants. This does not deprive the CBI of its own jurisdiction over these two groups. The Lokpal Act permits using the CBI (referred to by the Act as the Delhi Special Police Establishment, from which the CBI was born) for examining a complaint against a public servant for misconduct. Although the Lokpal has its own Inquiry Wing, it can nevertheless forward a complaint to the CBI for a preliminary inquiry, and thereafter for registering a regular case under the Prevention of Corruption Act, 1988. It is not clear what happens when such a complaint is already being inquired into by the CBI. Legally speaking, the government, in addition to the Lokpal, is competent to order a preliminary inquiry and permit the CBI to proceed with a regular case. What is also to be remembered is that the CBI can register a case even without the government’s nod in instances in which a public servant is caught red-handed while receiving a bribe. If an individual lodges a complaint with the government and the Lokpal, what should the Lokpal do? Does it have the authority to give direction to the CBI to keep its hands off the matter and wait for the Lokpal’s own Inquiry Wing to handle the matter?
The Act creates a Prosecution Wing exclusively for the Lokpal. How will that body coordinate with the CBI’s Director of Prosecution in respect of a matter handled by both of them? It is a common practice for complainants in India to dash off their complaints to a host of agencies. There is a distinct prospect of a clash between the government (which has greater powers of superintendence over the CBI than the Lokpal) and the Lokpal over a wide spectrum of issues. The Act gives the impression that superintendency over the CBI is shared by the Lokpal and the government, and neither is in exclusive command of the former. Can the Lokpal order the CBI to suspend its inquiry in respect of a complaint and report on it to the exclusion of the government?
The initial days are going to be difficult in terms of coordination. Everything will depend on how well the Lokpal and the government sink their egos and concentrate on the fundamental objective of striking at corruption without getting bogged down by technicalities.
All these imponderables, however, do not reduce the utility of a highly placed ombudsman. It may finally boil down to Justice Ghose’s perception of what his role is. He can certainly shape the future of this experiment.
R.K. Raghavan is a former CBI Director. Views expressed are personal
