ANIL DIVAN IN THE HINDU
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: firstname.lastname@example.org)