A.G. NOORANI in FRONTLINE
The 1985 Lokpal Bill destroyed the raison d’etre of the institution of an ombudsman, but all successive governments copied it.
PUBLIC anger was understandably aroused over the gross delay by Parliament in the last 40 years to enact a Lokpal Bill and with the toothless one that the government sponsored. It is not widely known that the delay was aggravated by deception and fraud in 1985. It was, however, emulated by almost all governments that came later. One does not grudge any of those who rushed to Jantar Mantar to grab a few minutes’ fame before TV cameras. Tinsel town, predictably, did not go unrepresented. If the cause had stirred them earlier, their disquiet remained their best preserved secret. One cannot expect Anna Hazare to study – or, for that matter, care for – the nitty-gritty of the law. Some of those who could have known ought to have spoken earlier loud and clear.
The Lokpal Bill was one of the three planks in the movement launched by Jayaprakash Narayan 40 years ago to eradicate corruption. The other two were electoral reforms, designed particularly to end the play of money power, and an effective anti-defection law. JP did not jump into the fray all of a sudden, still less did he resort to theatricals. He studied the problems, deliberated on solutions, and consulted a wide range of persons – lawyers, academics, activists, and so on. He consulted, in particular, the Lokayukta of Maharashtra, Justice S.P. Kotval, who was a former Chief Justice of the Bombay High Court.
JP expounded his views in a seminal article entitled “How to check the canker of corruption” in Everyman’s, a weekly he founded, in the issue of September 1, 1973. It was edited by the late Ajit Bhattacharjea. He recalled the recommendation of the Santhanam Committee on Corruption that “[if] a formal allegation is made by any 10 members of Parliament or a legislature in writing addressed to the Prime Minister or Chief Minister, through the Speakers and Chairmen, the Prime Minister or Chief Minister should consider himself obliged, by convention, to refer the allegations for immediate investigations by a committee…”.
He recalled also the Tamil Nadu Public Men Inquiry Act, 1973. Its definitions of “public man” included the Chief Minister, but its definition of “criminal misconduct” was confined to bribery or illicit acquisitions by abuse of power. M.G. Ramachandran was a member of the Joint Select Committee that considered the Bill. But, of course, as we all know the law completely succeeded in banishing the evil of corruption from Tamil Nadu for all time to come. Corruption simply does not exist in Tamil Nadu today.
JP dwelt, next, on a document that had set the ball rolling. “The Administrative Reforms Committee had recommended in October 1966 the institution of the office of a Lokpal at the Centre and of Lokayukta in the States with wide statutory powers. For reasons that are not clear, the Government of India took over 18 months to make up its mind; and it was only on the 9th May 1968 that the Lokpal Bill was first introduced in Parliament. It was passed by the Lok Sabha in August 1969, but it made no further progress owing perhaps to the power struggle that was brewing within the Congress then and that burst out into the open in September 1969.…
“It was only after Indiraji’s great electoral victory in 1971 that the Lokpal Bill was re-introduced in the new Parliament on 11th August 1971. Many spectacular Acts have been passed since the victory, such as the Constitutional Amendments Acts, but the Lokpal Bill, in its own way more important than the others, has been languishing until today. This and the other delays and omissions… suggest a deplorable lack of any sense of urgency on the part of the Government of India in dealing with a cancerous disease not only of the body politic but of the nation as a whole.”
Unlike some today, JP knew that no Lokpal could wield the magic wand. He wrote: “Let me not create the impression that the appointment of a Lokpal and Lokayuktas will in itself cure the disease of corruption so rampant among Ministers and civil servants. This is not the place to go into the question, but if the Lokpal Bill and the Maharashtra Ayukta Act, which is claimed to be patterned after the former, were carefully scrutinised, it would be discovered that the action of these vital officers is severely limited and hemmed in by restrictive provisions. It is in many ways a case of giving by one hand and taking away by the other… a fertile and well-known source of corruption at the State level, which embraces MLAs, local party functionaries and even Ministers, is the matter of transfers, postings and promotions of subordinate and higher government servants of all departments. Not only is this a source of corruption, but it also occupies most of the time of the Ministers.”
Anna Hazare, in contrast, asserts that the Lokpal Bill “will put the brakes on corruption in the country and help reduce the gap between the poor and the rich” ( The Hindu, April 17). It is a man of such colossal self-assurance and naivety who leads the movement. Kotval’s first Annual Report, for the period from October 25, 1972, to October 24, 1973, lists the crippling restrictions on the Lokayukta’s powers.
The interim report of the Administrative Reforms Commission (ARC) on “Problems of Redress of Citizens’ Grievances” initiated the discussion in the country. The ARC was headed by Morarji Desai. Its emphasis was on the redress of citizens’ grievances for maladministration even if there was no breach of the law. This was based on Scandinavia’s Ombudsman, who is essentially a parliamentary institution rather like India’s Comptroller and Auditor General (CAG). Speaking to the All India Congress Committee (AICC) in Jaipur on November 3, 1963, Prime Minister Jawaharlal Nehru said that while the ombudsman system fascinated him, he felt that in a big country like India, the introduction of such a system was beset with difficulties. But then, Nehru was never enamoured of inquiries into charges of corruption, anyway.
Paragraph 25 of the ARC’s report said: “The following would be the main features of the institutions of Lokpal and Lokayukta: (a) They should be demonstrably independent and impartial. (b) Their investigations and proceedings should be conducted in private and should be informal in character. (c) Their appointment should, as far as possible, be non-political. (d) Their status should compare with the highest judicial functionaries in the country. (e) They should deal with matters in the discretionary field involving acts of injustice, corruption or favouritism. (f) Their proceedings should not be subject to judicial interference and they should have the maximum latitude and powers in obtaining information relevant to their duties. (g) They should not look forward to any benefit or pecuniary advantage from the executive government.”
Appended to the report was a Draft Bill which covered (clause 7) both, “injustice in consequence of maladministration” and favouritism and corruption.
The British Parliamentary Commission Act, 1967, covered maladministration alone [5.5(1)]. The first concrete step for the appointment of an ombudsman institution in India came with the introduction of the Lokpal Bill in the Lok Sabha on May 9, 1968, to implement the recommendations of the ARC. The Bill was referred to a joint committee and was later passed by the Lok Sabha (August 20, 1969). But while it was pending in the Rajya Sabha, the Lok Sabha was dissolved, and the Bill consequently lapsed. The Bill was again introduced in the Lok Sabha on August 11, 1971. It lapsed on the dissolution of that Lok Sabha, the fifth, in 1977.
A Bill on Lokpal was introduced in the sixth Lok Sabha on July 28, 1977. The report of the joint committee, incorporating certain amendments in the Bill, was placed before the Lok Sabha on January 20, 1978. However, before the Bill could be adopted by Parliament, the Lok Sabha was dissolved, in July 1979, and the Bill lapsed. None was considered by the seventh Lok Sabha elected in 1980.
The format of the two Bills of 1971 and 1977 was abandoned and deformities were injected into the Bill introduced in the Lok Sabha on August 26, 1985. It was withdrawn on November 15, 1988, on specious grounds after the Joint Parliamentary Committee (JPC) which debated it had been sent on a merry-go-round in 23 States at government expense “from Shimla to Trivandrum and from Panjim to Port Blair”. But it was this deformed Bill that was adopted as a model by all successive governments with little noise from any of the ones who made noises at Jantar Mantar.
To the Bills of 1971 (based on the first Bill of 1968) and of 1977 we must now turn. The 1971 Bill empowered the Lokpal to inquire into both a “grievance” and an “allegation”. These terms are of crucial importance, for they constitute the raison d’etre of the Lokpal.
A grievance was defined as a claim by a person that he had “sustained injustice or undue hardship in consequences of maladministration”. The term “allegation” was defined to cover not only “corruption or lack of integrity” but also abuse of public office to secure gain or to cause harm or hardship to another. It included, no less, action motivated by “improper” motives. In sum, the Lokpal was empowered to investigate a large variety of improper acts even if they did not constitute corruption under the Prevention of Corruption Act, 1947.
The 1977 Bill altogether omitted from its scope grievances about maladministration since a separate machinery was contemplated to entertain such complaints. However, it widened the area of the Lokpal’s jurisdiction in respect of charges of improper behaviour by defining “misconduct” in the widest terms. To the provisions of the 1971 Bill, in respect of abuse of office and conduct actuated by improper motives, it added two more ingredients which bear recalling.
They are: “if he (the public man) directly or indirectly allows his position as such public man to be taken advantage of by any of his relatives or associates and by reason thereof such relative or associate secures any undue gain or favour to himself or to another person or causes harm or undue hardship to another person (Explanation: for the purposes of this clause, associate in relation to a public man includes any person in whom such public man is interested); or if he fails to act in any case otherwise than in accordance with the norms of integrity and conduct which ought to be followed by the class of public men to which he belongs.” The 1971 Bill excluded the Prime Minister; the 1977 Bill included him.
The 1977 Bill was moved by the Janata Party government, in which Shanti Bhushan was the Law Minister. It was sponsored by Home Minister Charan Singh, who had, as Chief Minister of Uttar Pradesh, got promulgated on October 21, 1967, the Uttar Pradesh Public Men Inquiries Ordinance. It covered “any imputation of misconduct” against a serving or past Minister, legislator and members of local bodies and so on. Under it, the government would have no power to prevent an investigation or inquiry from being held if required by any person; it would have no hand in the selection of judges; and the investigating agency would be completely insulated from the influence of the government.
The scheme provided that any person could make a complaint of misconduct to the Governor against a present or past holder of any of the offices specified. He would be required to file an affidavit in support of the complaint and deposit a security of Rs.1,000. The Governor would then request the Chief Justice of the High Court to nominate a judge to conduct a preliminary scrutiny and eventually order a fuller one by a commission of inquiry. The judge could even order the Chief Investigator to prosecute the offender.
No Bill in recent history has been so badly mauled by the JPC as the Lokpal Bill of 1977 was. It was headed by Shyam Nandan Mishra, who was to win undying fame later as Foreign Minister. The Bill had defined “misconduct” to include, besides corruption, failure to act in any case otherwise than in accordance with the norms of integrity and conduct which ought to be followed by the class of public men to which he belongs”. The JPC considered this to be “too wide and is, therefore, likely to be amenable to different interpretations”.
This was disingenuous. Section 45 of the Army Act of 1950 makes it an offence for any officer, Junior Commissioned Officer or Warrant Officer, to behave “in a manner unbecoming his position and the character expected of him”. Section 35 of the Advocates Act, 1961, renders an advocate liable to disciplinary proceedings if he has been guilty of “professional or other misconduct”. Also, the JPC felt that since MPs “do not exercise any executive powers they should not be treated at par with other public men exercising such powers”. Therefore, the concept of “misconduct” for them should be different. The report had notes of strong dissent. The Bill lapsed on the dissolution of the Lok Sabha in July 1979. Indira Gandhi had no use for any such law when she returned to power in January 1980. Rajiv Gandhi had a go at it. The Bill that his Law Minister, A.K. Sen, a man for all seasons, moved in the Lok Sabha on August 26, 1985, departed radically from the models of 1971 and 1977 and set up, in effect, a parallel quasi-judicial body with its remit confined solely to the criminal offence of bribery under the Indian Penal Code or the Prevention of Corruption Act, 1947.
The Bill introduced in the Lok Sabha by V.P. Singh’s government on December 29, 1989, was an exact replica of the Rajiv Gandhi government’s Bill except for two changes. The Prime Minister was explicitly covered, and reference to the IPC and the Prevention of Corruption Act of 1947 was replaced by reference to the Prevention of Corruption Act, 1988.
This destroys the raison d’etre of the institution. It is designed to help people who have been badly treated even if no law is breached. It is meant also to cover abuse of power and misdemeanours or misconduct even if they do not constitute offences under the law. Since courts exist to try offences under the IPC and the Prevention of Corruption Act of 1988, why set up a parallel body?
The sinister purpose behind this appeared in clause 24 of the 1985 Bill, which read thus: “Notwithstanding anything contained in any other law for the time being in force, where on an inquiry in respect of a complaint against a public functionary the Lokpal or the competent authority has held that any allegations made in the complaint have not been proved or substantiated, no prosecution shall lie on any complaint, report, information or otherwise and no court shall take cognisance of any offence on the basis of the same or substantially the same allegations as in the complaint.” In other words, a Lokpal probe, skilfully initiated, would bar prosecution in the courts altogether.
No such provision existed either in the 1971 Bill or in the 1977 Bill. However, it was faithfully copied in the V.P. Singh government Bill as clause 23.
The 1971 Bill covered both grievances in respect of maladministration and allegations of misconduct. The 1977 Bill was confined to “misconduct” alone, albeit defined in modest terms to cover abuse of power and improprieties as well as corruption.
The 1985 Bill omitted grievances of maladministration as well as charges of misconduct and restricted the jurisdiction severely to matters which are for the courts to decide – criminal offences as defined in the IPC and the Prevention of Corruption Act.
Having thus restricted the Lokpal’s jurisdiction, the 1985 Bill sought to exclude the criminal courts’ jurisdiction as well. And not only if the Lokpal exonerated the Minister but also if, disagreeing with his findings, the Prime Minister chose to exonerate his colleague. For, clause 24 referred to the results of an inquiry by “the Lokpal or the competent authority”. And who was this “competent authority”? Clause 2(a) said it “means the Prime Minister”. The whole thing was a fraud.
Nonetheless, each of the succeeding governments, headed by V.P. Singh, H.D. Deve Gowda, Inder Kumar Gujral and Atal Bihari Vajpayee, sponsored and supported in Parliament a Lokpal Bill which it very well knew to be a caricature of the institution of the ombudsman as it is known in the world over and as was known in this country before 1985. A monstrous fraud was perpetrated on the country in 1985 and perpetuated thereafter.
An ombudsman does not preside over a parallel judiciary to try offences under the Prevention of Corruption Act, 1988. The courts of law take care of that. To confer such a jurisdiction on the Lokpal and oust that of the courts is to confer immunity from the law to men in high office. For, unlike the courts, the Lokpal has no power to award punishment at all. It can do no more than report to a designated superior of the delinquent – the Prime Minister vis-a-vis Union Ministers. Worse still is to confine its jurisdiction to trial of offences and exclude from it just those kinds of cases for which the institution of an ombudsman has been devised and set up for decades the world over; namely, acts which do not constitute offences in law and for which the courts can provide no redress. Maladministration and abuse of power are classic instances of such acts.
The Bills of September 10, 1996 (H.D. Deve Gowda regime), of July 23, 1998 (A.B. Vajpayee regime), and of July 9, 2001 (A.B. Vajpayee regime) all studiously copied Rajiv Gandhi’s (or A.K. Sen’s) Bill of 1985 and confined the Lokpal’s remit to corruption as defined in the Prevention of Corruption Act of 1988. In each case an anaemic Lokpal could do no more than report to the Prime Minister, while ousting the court’s jurisdiction effectively by a parallel judiciary of sorts. L.K. Advani, needless to mention, was Deputy Prime Minister in the Vajpayee government.
In glaring contrast, a mere executive order of December 20, 1969, made by the Government of Kerala to set up “an Interim Machinery to enquire into allegations against public men” proved effective. It defined “misconduct” to include any act which is actuated “by improper or corrupt motives”. Judges who sat on commissions of inquiry defined the term “azhimathi” to cover a whole range of improprieties. (The Karnataka Lokayukta Act, 1984, also included in the Lokayukta’s remit the failure “to act in accordance with the norms of integrity and conduct which ought to be followed by public servants of the class to which he belongs” [S 2 (2) (d)].
Kerala’s Order of 1969 was superseded by the Kerala Public Men (Prevention of Corruption) Act, 1983, the Kerala Public Men’s Corruption (Investigations and Inquiries) Act 1987, and finally by the Kerala Lok Ayukta Act, 1999. It covers both lack of integrity and “injustice”. This Lokayukta has the power to order public servants, including the Chief Minister, to vacate office (Section 11) and to initiate a prosecution (Section 12).
If a Lokpal is to be worthwhile, the selected person must (1) have jurisdiction in respect of both maladministration and misconduct; (2) be appointed by a procedure that excludes executive influence and control. The Chief Justice of India and the Leader of the Opposition in the Lok Sabha must be on the selection panel along with the Prime Minister; (3) be a former judge of the Supreme Court or a former Chief Justice of a High Court; (4) have jurisdiction over a wide range of “public men” – the Prime Minister, MPs, senior civil servants, heads of public corporations and national universities, and so on; (5) have an independent investigating agency of his own and not be dependent on the Central Bureau of Investigation; (6) have the power to launch prosecutions himself and order vacating of office; (7) be easily accessible; (8) have a juridical personality. It would be best to amend the Constitution to give him constitutional status comparable to that of the CAG.
- Bring the farce to an end: Nariman (indialawyers.wordpress.com)
- Issue Brief on Lokpal Bill (indialawyers.wordpress.com)
- Jan Lokpal Bill (indialawyers.wordpress.com)
- Jan Lokpal bill: addressing concerns (indialawyers.wordpress.com)
- Jan Lokpal: an alternative view (indialawyers.wordpress.com)
- ‘A gigantic institution that draws powers from a statute based on questionable principles’ (indialawyers.wordpress.com)