Don’t embark on a futile exercise, Shanti Bhushan tells Supreme Court Constitution Bench
The Press Council of India (PCI) on Tuesday suggested that the Supreme Court frame guidelines for the media as these would be in the interest of not only administration of justice and rights of the litigant public but also the media themselves.
“The media, both print and electronic, have been playing an important role in shaping and sustaining Indian democracy,” senior counsel P.P. Rao, appearing for the PCI, told a five-judge Constitution Bench headed by Chief Justice S.H. Kapadia. “The scheme of the Press Council Act itself shows that the intention of Parliament is to allow self-regulation by the media as far as possible. While the print media is within the purview of the Press Council Act, the electronic media is not. Therefore, it is desirable to lay down guidelines for both the print and electronic media to follow in reporting court proceedings, rather than making statutory rules.”
Mr. Rao told the Bench, which included Justices D.K. Jain, S.S. Nijjar, Ranjana Desai and J.S. Khehar, that the court, while framing the guidelines, might take into consideration the relevant norms of journalistic conduct laid down by the PCI. Explaining the powers of the PCI, counsel said: “Section 14(1) of the Press Council Act confers on the Council power to warn, admonish or censure the newspaper, news agency, the editor and the journalist or disapprove [of] the conduct of the editor or the journalist, as the case may be, after holding an enquiry into the complaints. The Council, which is presided over by a retired judge of this court and in which editors, working journalists and managements of big, medium and small newspapers are represented, has laid down Norms of Journalistic Conduct. Self-regulation is always better than statutory regulation. However, when any TV channel, newspaper or news agency fails to adhere to the guidelines laid down by this court, appropriate orders may be passed in the facts and circumstances of each case.”
The former Law Minister, Shanti Bhushan, appearing for some journalists, asked the CJI to dissolve the Constitution Bench hearing the present case, saying it would be a futile exercise. He cited an instance of the former CJI, Justice A.N. Ray, dissolving a 13-judge Bench after he found no support for his case. Mr. Bhushan was referring to a move by Justice Ray, who set up the 13-judge Bench to reconsider the Kesavananda Bharti judgment in which the court had held that Parliament had no right to amend the basic structure of the Constitution.
Mr. Bhushan asked the Bench not to embark on a futile exercise which would be detrimental to the rights of the press and destroy democracy in this country. “No purpose will be solved by going through this exercise.”
Taking the Anna Hazare argument, he argued that people were sovereign in India. “That is the reason why even the right to freedom of press was not absolute in this country. It was instead left to Parliament to lay down reasonable restrictions on this freedom. All institutions in our democracy are people’s institutions. Even the judiciary is accountable to the people. People have a right to know what is happening.”
Senior counsel Anil Divan, appearing for the Editor of The Hindu, Siddharth Varadarajan, commenced his arguments, pointing out the anomaly of the court deciding to lay down guidelines which in this case would “abridge” the freedoms of individuals instead of “protecting” them or “disciplining” officials. Mr. Divan cited the ‘Visakha judgment,’ saying that in that case the court was only seeking to protect fundamental rights of citizens. But in this case the Bench was embarking on a quasi-legislative exercise as once the court framed guidelines they would become immune from judicial review. “I will have no remedy. But tomorrow, if Parliament were to adopt these guidelines, the person aggrieved will have a remedy. I can challenge them before you.”
Mr. Divan said the exercise undertaken by the court was not prudent in view of globalisation of information dissemination technology. “If the guidelines will be coercive or binding in nature, then it is covered by the legislative process.”
The CJI intervened, and said: “The deliberations on the guidelines were not a result of adversarial litigation. We are only trying to regulate the media to the extent that the rights of person in criminal cases are protected under Article 21 [Right to life and liberty] of the Constitution.”
The CJI asked Mr. Divan to address the question whether the rights of the press could be balanced to ensure administration of justice and protect the rights of the accused to ensure a free trial in a criminal case.
Department of Administrative Reforms and Public Grievances has prepared a Draft Bill called “Citizens Right to Grievance Redress Bill, 2011”. This is a comprehensive rights based bill for the citizens of the country, providing statutory backing for getting timely services and goods specified in citizens charters of public authorities from Gram Panchayat, Block, District, State up to Central Level. Any violation of the citizens charter will be dealt as a grievance and institutional mechanism has been provided for time-bound grievance redressal and malafide action on the part of responsible officers will lead to penalty / disciplinary action.
Key recommendations in the Draft Bill are:
There will be a Citizens Charter, and a protocol will be put in place.
Bill can be enacted as a central legislation under the concurrent list Item 8 (actionable wrongs) and can cover:
Central Schemes and Central Government Departments
Provide a Platform to States to make this a Grievance Redressal Mechanism for State Schemes and Departments
Bill will incorporate the institution of Information and Facilitation Centre in all public authorities to ensure that Citizens can be facilitated and grievances are systematically recorded and tracked using telephone, sms, web etc.
First level Redress should be within concerned department as proposed. This should be done through a Grievance Redress Officer in each department
The second level redress/ appeal will be at the level of Head of the Department of the public authority.
State Grievance Commissions should be set up as second level appellate authorities.
These documents are placed in the public domain for inviting comments and suggestions which can be forwarded at the following email address by 23.11.2011:
The Anna Hazare-led civil society movement cannot be faulted for having come up with its version of the Lokpal Bill, because otherwise it would have been accused of campaigning for something essentially negative – the withdrawal of the flawed government version without putting forward an alternative. Frustration with everyday corruption – as well as the spectacular kind that explodes in the public sphere ever so often ( Commonwealth Games, 2G, Adarsh, illegal mining in Bellary district etc) – explains the widespread popular support received by the anti-corruption movement.
The depth of this support, coming from every corner of the country, should tell the government something. While the value of the movement lies in having highlighted the critically important issue of corruption – which has not been dealt with seriously by successive governments – the Jan Lokpal Bill put forward by Team Anna too is flawed in some of its specifics.
If the government Bill is minimalist, setting up a toothless ombudsman with limited powers, the Jan Lokpal is too overarching in its design and could topple under its own weight. It is somewhat contradictory in its approach, in that it envisions a superior layer of bureaucracy to fix bureaucratic corruption. If the government version of the Lokpal Bill can be likened to a cop with a lathi confronting an AK-47 wielding terrorist, the Jan Lokpal could be the equivalent of the trigger-happy supercop mowing down innocent citizens in his rage to establish order.
A third version of the Lokpal Bill, formulated by Aruna Roy and the National Campaign for Peoples’ Right to Information (NCPRI), is superior to both the government version and the Jan Lokpal Bill. We are in sympathy with its broad philosophy, which is to have a series of interlocking bodies which will act as a check on each other rather than a centralised, overarching Lokpal which supervises everything. The way to check corruption is through an architecture of mutually supportive legislation, rather than through a single Bill which is required to deliver a magic bullet. This vision is best embodied in the NCPRI design.
The biggest flaw in the government version is that it excludes many categories of public servants from its ambit – anyone below grade A in the central government, state-level civil servants, the judiciary, the PM while he is in office. Moreover the dice is loaded in favour of the accused, which would make it extremely difficult to bring powerful people to justice and therefore defeat the purpose of the Bill.
For example, while there is no provision to protect whistleblowers, the Bill provides for all incriminating evidence to be made available to the accused even before the registration of an FIR. Moreover, the tough punishment provided for the subjectively determined ‘frivolous’ or ‘vexatious’ complaint (two to five years imprisonment) would deter most victims of corruption from lodging a complaint.
The Jan Lokpal Bill corrects for flaws in the government version by including everybody under the ambit of the Lokpal. Besides corruption cases, the Lokpal is asked to look into grievance redressal as well. This leaves it with the unenviable task of policing some four million employees of the central government alone, among many other categories.
Like our present court system, the Jan Lokpal could simply get buried under a backlog of cases. Moreover, too much power would be concentrated in the Jan Lokpal. Complaints against it may be lodged in the courts. But since the judiciary itself will be under the Jan Lokpal, that would have a chilling effect on any judgments against it.
For anti-corruption laws to work, the remit of anti-corruption bodies must be specific and focussed. To have a manageable task on its hands, the Lokpal should focus on corruption cases involving MPs, ministers and senior officers in the central government. If corrupt officers at grade A level are punished, the message is bound to percolate downwards. Besides, there can be other agencies to check corruption at other levels (more about this soon).
For the same reasons the Lokpal should confine itself to cases where public servants are involved, and not stray into cases of NGO or corporate fraud. The government Lokpal envisages harsh penalties for NGOs, the Jan Lokpal and NCPRI versions do the same for corporates. But the job of public servants is to regulate the working of civil society institutions. If public servants were honest and only some corporates and NGOs were corrupt, we wouldn’t have so much of a problem as the government can throw the book at the latter using a whole gamut of legal instruments: the Companies Act, the Prevention of Corruption Act, IPC provisions which deal with bribery and corruption, income tax laws, the Foreign Contribution (Regulation) Act and so on.
The real problem arises when the regulators themselves, ie public servants, are corrupt. Anti-corruption laws will work if we keep the architecture simple, without diversionary red herrings – the government polices civil society, Lokpal polices the government.
Who polices the Lokpal? It could be the Supreme Court, which would entail keeping the higher judiciary outside the purview of the Lokpal. The NCPRI suggests strengthening the Judicial Standards and Accountability Bill as a check on judicial corruption. But a superior solution is to have a National Judicial Commission (NJC), which would look at judicial appointments as well.
If the quality of judges in the Supreme Court and high courts could be regulated at entry, that would be a more holistic way of dealing with corruption. To widen the scope of discussion on judicial practices, the NJC should incorporate a balanced mix of non-judicial members as well (the relevant authority in the current Judicial Bill can induct only judges and members of the legal profession). It may require a constitutional amendment to set up the NJC, but the government could commit to bring in such an amendment within a year.
As for dealing with corruption at other tiers of public service, the NCPRI makes sound suggestions. A strengthened Central Vigilance Commission (CVC) can look at corruption among civil servants below grade A level. State Lokayuktas should be appointed to rein in corruption at the state level.
While a serving prime minister should be under the aegis of the Lokpal, strong safeguards are needed to ensure he is not unduly harassed in conducting the work of government. A full bench of the Supreme Court should be convinced there is a prima facie case and clear the investigation, vicarious liability (due to misconduct of other ministers) shouldn’t be considered, national security matters should be kept outside the purview of the Lokpal.
There is need for a strong Bill to protect whistleblowers. Another one should set up a grie-vance redressal commission, to look into redress of grievances not amounting to corruption. Finally, it’s important to remember that corruption cannot be controlled through punitive steps alone. Side by side, we need to reform the system to reduce incentives for corruption. For that we need to look carefully at policies and processes through which scarce resources such as land, spectrum and minerals are allocated. We also need to look at how elections are funded. High stamp duties, for example, incentivise the undervaluing of property and therefore the setting up of a black economy. Heavily distorted land markets make the rise of a land mafia inevitable. Rs 40 lakh as the legally designated upper limit for electoral spending by a Lok Sabha candidate is ridiculously low and impractical, inviting evasion by successful candidates.
Perhaps, instead of a mechanical cap on spending we need to put in place a full disclosure requirement, whereby every candidate is obliged to place on record all campaign contributions received beyond a prescribed minimum level. For insights into how reforming the system (as opposed to punitive measures alone) could reduce incentives for corruption, watch this space tomorrow for an article on the subject by Arvind Panagariya.
Tackling graft: The many drafts
Whom should the Lokpal cover?
GoI Lokpal draft: Includes NGOs in the Lokpal’s ambit
Jan Lokpal draft : Includes corporates in its purview
NCPRI draft: Includes corporates within its radar
Times View: The Lokpal must focus on graft in government. Existing laws should be strongly applied to corrupt practices in civil society but the Lokpal must focus on corruption within government.
The higher judiciary
GoI Lokpal draft: Excludes the higher judiciary from the Lokpal’s purview
Jan Lokpal draft: Includes the higher judiciary within the Lokpal’s purview
NCPRI draft: Excludes the higher judiciary from the Lokpal’s ambit – it instead proposes a stronger Judicial Standards and Accountability Bill for tackling issues of corruption in the judiciary
Times View: The judiciary must be free to survey the Lokpal itself. The judiciary can be managed via a National Judicial Commission – that’s better than just a Judicial Accountability Bill as it surveys graft and legal appointments and is open to non-legal members too
Covering the PM
GoI Lokpal draft: The PM is under the Lokpal’s purview – but only after leaving office
Jan Lokpal draft: The PM is fully included while in office
NCPRI draft: The PM is included during office – with proper safeguards
Times View: The PM should be included – with due checks. The NCPRI draft provides good safeguards (due process, no vicarious liability and confidentiality on matters of national interest)
GoI Lokpal draft: Only includes Group A officers under the Lokpal’s purview
Jan Lokpal draft: Includes all government servants
NCPRI draft: Envisions all government officers outside Group A to be surveyed by a stronger CVC’s office
Times View: The Lokpal must focus on corruption in high places. Putting all government officials under it is over-burdening it. A stronger CVC and state-level Lokayuktas should oversee all officers outside senior level
Public grievance redressal
GoI Lokpal draft: Makes no provisions for public grievances or their redressal
Jan Lokpal draft: Includes public grievances and redressal at all levels under the Lokpal
NCPRI draft: Envisions a separate commission specifically to hear public grievances and manage redressal
Times View: The Lokpal is a unique institution designed to weed out corruption in government. As the NCPRI draft suggests, public grievances over a range of issues should be routed to another body that can make enquiries at diverse levels and make effective, hard-hitting changes where needed
Is the Bill within the legislative competence of Parliament? Yes.
All provisions in Anna Hazare‘s Jan Lokpal Bill are within the legislative competence of Parliament, including the provisions relating to Lokayuktas in the States. Some confusion is being spread in the media that Parliament cannot enact all the provisions of the Jan Lokpal Bill, particularly those relating to the Lokayuktas in the States, a law for which will have to be enacted by the State Legislatures themselves. Any constitutional jurist would confirm that there is no substance in this impression and that Parliament is fully competent to enact all the provisions of the Jan Lokpal Bill.
Parliament can enact any law if the “pith and substance” of that law is covered by any entry in the Union List or any entry in the Concurrent List. Entry 97 of the Union List is as follows: “Any other matter not enumerated in list 2 or list 3 including any tax not mentioned in either of those lists.”
The effect of this is that unless the pith and substance of the Jan Lokpal Bill falls squarely under any of the entries in the State List, Parliament cannot be denied the legislative competence to enact the provisions of the Jan Lokpal Bill. Even a student of law would tell you that the pith and substance of the Jan Lokpal Bill does not fall under any entry in the State list.
One of the entries in the Union List is entry No.14: “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.” Article 253 provides that “Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” The effect of Article 253 is that even if the pith and substance of an Act is squarely covered by an entry in the State List, even then if the enactment is for implementing a U.N. Convention, Parliament would still be competent to enact the legislation.
The definition of “public official” in the U.N. Convention includes any person holding a legislative, executive, administrative, or judicial office, whether appointed or elected. This is quite similar to the definition of “public servant” in the Prevention of Corruption Act, 1988, enacted by India’s Parliament, which covers all Ministers including the Prime Minister, all judges of the High Court and the Supreme Court as well as all elected Members of Parliament and State Legislatures. Incidentally, it may be mentioned that the Prevention of Corruption Act was enacted by Parliament and not by any State Legislature, even though it is applicable not only to Central government servants but also to servants of the State governments. The main object of the Jan Lokpal Bill is to set up an independent authority as required by the U.N. Convention to investigate offences of corruption by all public servants covered by the Prevention of Corruption Act, 1988.
Entry 1 of the Concurrent List refers to criminal law, including all matters included in the Indian Penal Code. As bribery and corruption were covered by the Indian Penal Code, Parliament had full competence to enact the Prevention of Corruption Act.
Entry 2 of the Concurrent List relates to criminal procedure, including all matters included in the Code of Criminal Procedure. Since the investigation of bribery and corruption was included in the Code of Criminal Procedure, Parliament is fully competent to enact a law to provide for alternative methods of investigation of offences under the Prevention of Corruption Act.
Article 8 (2) of the U.N. Convention requires each state that is a party to the Convention to apply, within its own institutional and legal systems, codes or standards of conduct for the correct, honourable, and proper performance of public functions.
Article 8 (5) further requires the states to establish systems requiring public officials to make declarations regarding their outside activities, employment, investments, assets, and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.
Article 8 (6) further requires the states to take disciplinary or other measures against public officials who violate the codes or standards established in accordance with the convention.
Article 12 (2) requires the taking of measures for preventing the misuse of procedures regulating private entities, including procedures regarding subsidies and licences granted by public authorities for commercial activities. It further requires the imposition of restrictions for a reasonable period of time on the professional activities of former public officials after their resignation or retirement, where such activities of employment relate directly to the functions held or supervised by those public officials during their tenure.
Article 34 of the Convention requires the states to consider corruption a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument, or take any other remedial action. It would be crystal clear to any constitutional jurist that even if the Jan Lokpal Bill had not been for the purpose of implementing the U.N. Convention, all its provisions would be squarely covered by the Union List and the Concurrent List.
While one can understand the anxiety of political parties to somehow attempt to dilute the provisions of the Jan Lokpal Bill by reducing its coverage or to weaken it, they owe it to the people of India not to mislead the gullible people that Parliament is not competent to enact the provisions contained in Anna Hazare’s Jan Lokpal Bill. Even the claim that at the least the States are required to be consulted has no basis at all. The Constitution-makers had foreseen that in a federal or quasi-federal country, the States’ views had to be taken into consideration by Parliament when enacting a law. They had, therefore, provided for the Council of States and a Bill cannot be enacted by Parliament unless it is passed both in the Lok Sabha and the Rajya Sabha. The constitution of the Rajya Sabha provides that each State elects its representatives to this House. Thus all States are represented in the Rajya Sabha. The MPs in the Rajya Sabha are there to represent the views of the states on any Bill that comes before it and there is thus an inbuilt mechanism in the Constitution itself to provide for taking into consideration the views of the States on a Bill that is being enacted by Parliament.
(Shanti Bhushan, a constitutional expert, is a former Union Law Minister and member of the Joint Drafting Committee on the Lokpal Bill.)
CONSITUTIONAL expert and former Lok SabhaSecretary-General Subhash Kashyap says that the government has not conceded much, that it has not committed itself to anything, and that Team Anna has not gained much on its demand for the acceptance of a Jan Lokpal Bill. The only achievements of the fortnight-long agitation are public awakening and the fact that the issue of corruption has been placed centre stage. “It is still a long road ahead,” he said in an interview to Frontline. Excerpts:
The upsurge of support for Anna Hazare and the fact that Parliament held a sitting on a holiday to discuss the issues raised by him do herald the beginning of something big. What exactly has been the net outcome of the unprecedented anti-corruption movement?
Unprecedented no doubt it was because never before has Parliament held a sitting on a holiday to discuss an issue raised by a non-political entity. The issue had gripped the nation’s imagination for over 12 days. It was also unprecedented in the sense that never before has public support for any cause been so humongous. The government initially appeared in no mood to give in to Anna Hazare’s demands. But let us not get carried away by all this because the net outcome is tenuous in nature, to say the least. No substantive achievement has been made as far as acceptance of the demand for a Jan Lokpal Bill is concerned.
Why do you say this when Parliament has committed itself to accepting the three demands put forth by Hazare?
If you look at the ‘sense-of-the-House‘ resolution closely, you will notice that it was no resolution as such; so the House as such has not resolved anything. At best, it was only an ‘in principle’ agreement with the three demands, which have merely been ‘forwarded’ to the Standing Committee for its ‘perusal’. Hence, the government has not committed itself to anything, Parliament has not committed itself to anything, and the sense-of-the-House resolution forwarded to the Standing Committee is not binding on it. So, in strict legal or constitutional terms, the sense of the House has no meaning whatsoever, except a moralistic one. The committee may or may not honour it. So, in effect, the government has not conceded anything to Team Anna. It has stuck to its position that whatever it had to say would be put forth to the Standing Committee, which will take cognisance at the time of studying the Lokpal Bill.
Then why is the entire exercise being dubbed as a “victory of democracy”, as if this was history in the making?
It was history in the making in a different sense. It was for the first time since Independence that the government, and Parliament, was seen to be succumbing to public pressure, that it actually conceded that people too should be taken into account while drafting legislation. For the first time, people were seen to be taken seriously by the political class. Also, the fact that the entire exercise brought the issue of corruption to the fore makes it significant. But let us not lull ourselves into believing that this is a big victory against corruption. It is just the beginning. The proposed law will only be a curative solution, it will not attack the causes for corruption, nor will it prevent corruption. For that we need wide-ranging systemic reforms in all sectors.
If this is the case, what explains the massive support for the cause?
Dissatisfaction with the government, which has never been so pronounced, except during the Emergency in its second year. The situation today is akin to what Marx says, ‘the state has withered away’. There is total chaos, people are fed up with high prices, there is corruption at every level, there is massive governance deficit, the government has failed the people at all levels. It was a tailor-made situation for such an outpouring. People genuinely believed that they were participating in the second freedom struggle, to rid the country of corruption. But let me warn you, one such Bill cannot be the panacea for all that is wrong with the system. And let me also warn you that one should not be overambitious in expecting the re-drafted Lokpal Bill to include all these suggestions. It may or may not happen.
So what have we achieved, finally?
Anna Hazare has broken his fast! I am sure we will need him for many more such mobilisations in this fight against corruption.
In its effort to recommend an effective Lokpal Bill, the Standing Committee has to consider all the nuances of the views of civil society.
THE 31 members of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, drawn from the Lok Sabha and the Rajya Sabha, have an onerous task on hand as they begin to scrutinise the Lokpal Bill. They cannot discuss the government’s Bill oblivious to the anti-corruption movement led by Anna Hazare, which resulted in extraordinary debates and an identical sense-of-the-House agreement in both Houses of Parliament on August 27.
The committee’s Chairman, Abhishek Manu Singhvi, a Congress MP and a senior advocate in the Supreme Court, has promised several surprises in its recommendations on the Bill and is of the view that 80 per cent of the Bill will be changed after the committee submits its report before the winter session of Parliament begins.
This is the first time that members of the Standing Committee will be discussing the provisions of a government’s Bill on the basis of a sense-of-the-House agreement, which is a rare expression of the collective will of the House on a piece of legislation and is a corrective measure. In a sense, it amounts to an admission by all the parties in Parliament that they failed to read the public opinion at the time of introduction of the government’s Bill and therefore they want to ensure that the committee considers the key concerns expressed by the public over the Bill’s omissions.
It is possible that the committee will, in any case, be apprised of these concerns during its two-month-long interaction with the public, seeking comments and suggestions and hearing testimonies from select representatives of civil society and other stakeholders. Yet, the sense of the House on these concerns means that the committee cannot finalise its recommendations without considering that agreement. The committee’s report is not binding on Parliament, which has to debate the provisions of the Bill again, in the light of the recommendations.
The three concerns over which Parliament expressed its sense-of-the-House agreement in response to Team Anna’s demands in order to make Anna Hazare end his fast constitute the salient features of the Jan Lokpal Bill. The agreement was carefully worded in view of the differences among members over how to resolve the three concerns:
“This House agrees in principle on the following issues: Citizens’ Charter, Lower Bureaucracy also to be under the Lokpal through appropriate mechanism, and establishment of Lokayuktas in the States.”
Union Finance Minister Pranab Mukherjee requested the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha to transmit the proceedings of both the Houses on August 27 to the Standing Committee for its perusal while formulating its recommendations on the Bill.
The government has also forwarded to the committee the Jan Lokpal Bill and the comments and suggestions of Aruna Roy’s National Campaign for People’s Right to Information (NCPRI) and those of the Lok Satta party founded in 2006 by Jayaprakash Narayan, a former Indian Administrative Service officer.
The Jan Lokpal Bill, proposed by India Against Corruption (IAC), envisages a single institution that will cover all public servants and at all levels, from the Prime Minister down to the peons, which means all Ministers, elected representatives, civil servants and members of the judiciary. The NCPRI, however, is of the view that this will make the Bill too unwieldy and lead to the concentration of too much power in a single institution.
The NCPRI proposed three different institutions, namely, a national anti-corruption commission, called Lokpal, to tackle corruption of all elected representatives and senior bureaucrats; the Central Vigilance Commission (CVC) to be an investigative, prosecution and appellate authority for the remaining categories of civil servants; and a judicial accountability commission to investigate charges of corruption and misconduct against sitting judges.
While both the IAC and the NCPRI agree that the anti-corruption wing of the Central Bureau of Investigation can be transferred to the proposed Lokpal, the NCPRI wants the anti-corruption wing of the CBI dealing with the lower bureaucracy transferred to the CVC. The latest draft of the Jan Lokpal Bill is silent on the CVC’s future despite its previous version stating that the CVC be subsumed in the Lokpal and the CVC Act be repealed.
The Lok Satta’s model is similar to that of the NCPRI. According to it, the CVC (Chairman and two members) should be ex-officio members of the Lokpal and should be appointed in the same manner as the Lokpal. The CVC will perform all functions as envisaged under the law except that the allegations against Group A officers and above will be referred to the Lokpal. Once the CVC is integrated with the Lokpal, that body will exercise superintendence and guidance of the CBI. The CBI should be divided into two agencies – the normal crime investigation wing and the anti-corruption wing. The anti-corruption wing of the CBI will be accountable only to the CVC and not to the government. In States, the anti-corruption bureau will be directly under the Lokayukta, according to the Lok Satta proposal.
The differences among these three models are not in substance, but only in form. Hopefully, the appropriate mechanism which the committee will recommend should satisfy the authors of these three models.
On the Citizens’ Charter, the sense-of-the-House agreement is silent on the modalities. The Jan Lokpal Bill makes repeated violation of the Citizens’ Charter by any public servant an act of corruption. It defines “grievance” as a claim by a person that he could not get satisfactory redress according to the Citizens’ Charter despite approaching a public grievance redress officer ((PGRO) of the department concerned. The Bill also states that the Citizens’ Charter shall enumerate the public authority’s commitment to the citizens that are capable of being met within a specific time limit, and shall designate the officer whose duty would be to fulfil the commitment of the public authority.
The Jan Lokpal Bill further states that it shall be the duty of the PGRO to get the grievance redressed within 30 days from the receipt of the complaint. If he fails to do so, a complaint could be made to the Lokpal. The Lokpal, after hearing the PGRO, would impose suitable penalty not exceeding Rs.500 for each day’s delay, but not exceeding Rs.50,000, to be recovered from his salary. The Lokpal may also recommend imposition of departmental punishment on such PGROs.
The NCPRI feels that the Lokpal should not be involved in grievance redress because it is impractical, given the numbers that would be involved and the need to tackle grievances in a decentralised manner. It, therefore, suggests the setting up of an independent, specialised and professional grievance redress commission to redress grievances effectively in a decentralised and time-bound manner.
A three-member Bench of the Lokpal, according to the Jan Lokpal Bill, may direct any public authority to make changes in their Citizens’ Charter, and that public authority shall make such changes within a month of the receipt of that order.
The Lok Satta too agrees with the NCPRI that grievance redress should not be part of the Lokpal’s jurisdiction, but should come under a grievance redress authority to be formed at the Centre and in the States. Team Anna insists that grievance redress should come under the Lokpal because it has defined grievance non-redress as an act of corruption. The NCPRI and the Lok Satta do not seem to agree that grievance non-redress should be deemed to be an act of corruption.
However, when the Jan Lokpal Bill provides for an appellate grievance officer (AGO) in each district to receive grievances and requires that there shall be a social audit of each AGO every six months, it is not clear why the AGO cannot perform the functions of the Lokpal, as envisaged in the earlier drafts of the Jan Lokpal Bill.
The IAC’s difference with the NCPRI seems to be only over the definition of corruption, which is basically an academic, rather than a practical, issue. If the objective of grievance redress can be achieved under a different authority in a more effective manner than what has been proposed in the Jan Lokpal Bill, clearly Team Anna could consider the proposed alternative rather than insist on the literal adoption of its draft.
Both IAC and the NCPRI agree that the Lokpal, as an institution, should be replicated at the State level through appropriate Lokayuktas. The Lok Satta adds that the Lokayuktas should be appointed in a similar manner by a State-level selection committee and should have similar powers, protection and functions as that of the Lokpal.
It further adds that with the ratification of the United Nations Convention Against Corruption (UNCAC), Parliament, under Article 253 of the Constitution, has the power to make laws for the entire territory of India even on State subjects in matters relating to corruption. Although the Central government initially had reservations over the demand that the Bill could create Lokayuktas in States, it has now come around to the view that it could enact a model law for the States to adopt without violating the federal principle.
The Jan Lokpal Bill, according to its framers, would be called the Anti-Corruption, Grievance Redressal and Whistle-blower Protection Act. This suggests that the last two aspects are not subsumed under anti-corruption. Therefore, the NCPRI’s basket of measures proposing a separate grievance redressal commission and a distinct and strong whistle-blower protection law makes sense. Chapter XI of the Jan Lokpal Bill, with just one section and five sub-clauses, deals with protection of whistle-blowers. The NCPRI has come out with detailed notes for discussion on strengthening the Whistle-blower Protection Bill, currently pending in Parliament.
The fact that Team Anna wanted Parliament to commit on only these three issues makes it clear that it is flexible on other contentious issues such as the exclusion of the Prime Minister from the Lokpal’s ambit if the allegations against him pertain to national security and defence.
The government’s Bill includes in its ambit corruption in non-governmental organisations (NGOs). Team Anna’s answer to this is that the investigation of allegations of corruption in NGOs by the police does not lead to any conflict of interest and therefore such allegations can be kept outside the purview of the Lokpal. However, if the allegation mentions that a public servant sought to influence the investigation of corruption in an NGO, the Lokpal can investigate it and prosecute the accused.
Team Anna has also answered the criticism that the Jan Lokpal Bill is silent on corporate corruption by drawing attention to Section 6 (o), according to which the Lokpal’s function is to recommend cancellation or modification of a lease, licence, permission, contract or agreement if it was obtained by corrupt means and to recommend blacklisting of a firm, company, contractor or any other person involved in an act of corruption by the public authority. In the event of rejection of its recommendation, the Lokpal may approach the appropriate High Court for relief.
Another provision is Section 31 (1), which says that no government official shall be eligible to take up jobs, assignments, consultancies, etc., with any person, company, or organisation that he had dealt with in his official capacity. Subsections (2) and (3) of Section 31 call for complete transparency in the award of contracts, public-private partnerships, agreements or memorandums of understanding (MoUs).
Team Anna probably did not consider these provisions critical enough to bargain for their inclusion in the sense-of-the-House agreement even though they seem to be more significant than the three ‘sticky’ issues that it identified as the roadblocks that prevented Hazare from ending his fast.
It is ironical that Team Anna, which had initially questioned the relevance of the Standing Committee fine-tuning and improving the provisions of the government’s Bill, now sets great store by its ability to make a difference to the Bill.
Perhaps its confidence was restored after the committee’s recommendations on the Judicial Standards and Accountability Bill, referred to it by Parliament, became public. In its report, the committee is of the view that the government has to move beyond an incremental approach and give urgent and due thought to a holistic legislation encompassing the appointment process and other related matters to ensure judicial accountability for improved administration of justice.
In particular, the committee has recommended dilution of the provision imposing severe punishment for frivolous and vexatious complaints so that genuine complainants are not discouraged from complaining against the misbehaviour of a judge. The Bill prescribes imprisonment of up to five years and a fine of up to Rs.5 lakh for those found to have made false complaints against a judge.
The committee has also recommended the inclusion of non-judicial members in the composition of the complaints scrutiny panel, on whose decision alone a complaint could be considered by the National Judicial Oversight Committee. The Standing Committee has also recommended the need to broadbase the membership of this oversight committee with nominees from the executive, the legislature and the judiciary, and make it inclusive with representatives of all social classes.
Team Anna has agreed to drop its insistence that the Lokpal should include members of the judiciary in its ambit, on the condition that Parliament adopt a stronger Judicial Standards and Accountability Bill than the one that was referred to the Standing Committee. The Jan Lokpal Bill’s inclusion of the judiciary under the purview of the Lokpal did not go down well with other civil society groups, which are concerned about the threat to judicial independence from an all-powerful Lokpal.
After the appeal by all political parties to Anna Hazare to end his fast cutting across party lines in the resolution adopted unanimously in the Lok Sabha on August 25, it was reasonable to expect that his core group of advisors would ensure that the impending danger to his health and life would be averted. Justice Santosh Hegde, a member of Anna Hazare’s team, and his many other followers also made such an appeal. A meaningful constructive debate on the status, nature and jurisdiction of the proposed Lokpal requires a conducive atmosphere. Fortunately, Anna Hazare having decided to end his fast, the debate on the contentious issues can now proceed coolly.
One such issue has emerged from Rahul Gandhi’s suggestion in the Lok Sabha that the proposed Lokpal be a constitutional body like the Election Commission or the Comptroller & Auditor General, which has the status of a Judge of Supreme Court. As it is, the contemplated draft Lokpal Bills also envisage the same status for the Lokpal, though in an ordinary legislation. Many persons have sought my view on this issue. Therefore, I consider it worthwhile to put it in public domain for consideration, as part of the democratic process.
What, if any, could be the advantages of the proposed Lokpal being a constitutional body, instead of a mere statutory authority? I would think there are many.
One obvious difference is that any change in the structure or status of a mere statutory authority can be made by a simple majority in the legislature enacting an ordinary legislation, whereas such a change in a constitutional body would require the more onerous route of a constitutional amendment adhering to the principle of federalism. No doubt, the initial creation of the Lokpal as a constitutional body would itself require a constitutional amendment, but in the current mood of the entire nation supporting the crusade against corruption demanding a ‘strong Lokpal’, the environment is conducive for this progressive step. An immediate impact of such a move will be also to satisfy the core demand of Anna Hazare and his team voiced by the entire nation of a ‘strong Lokpal’.
One of the contentious issues relates to the provision for effective Lok Ayuktas in the states. Article 253 of the Constitution does empower Parliament to enact a law for the whole or any part of the territory of India to implement an international treaty or convention: UN Convention against Corruption in this case. This provision overrides the Lists in the Seventh Schedule. A constitutional amendment to create the institution of the Lokpal akin to that of the Election Commission or the CAG will overcome that difficulty by making uniform provision for equally effective Lok Ayukta in the states.
Another relevant factor is that corruption-free governance is a basic human right, more so in a developing country. In India it is a judicially recognised enforceable right derived from guaranteed fundamental rights. The Human Development Report, 1999 on the theme of ‘Crisis of Governance in South Asia’, identified corruption as a major cause for that crisis. A ‘strong Lokpal’ to combat the malaise of corruption is a clarion call of the nation; and it is also a means to address the constitutional promise made in the directive principles of State policy as well as for eradication of poverty-the foremost Millennium Development Goal. The Durban Commitment to Effective Action against Corruption (1999) resolved: “[Corruption] deepens poverty; it debases human rights, it degrades the environment; it derails development and it destroys confidence in democracy and the legitimacy of governments. It debases human dignity.” A constitutional Lokpal, instead of a statutory Lokpal, will be more effective to achieve this objective.
Another incident of a constitutional Lokpal to combat corruption would be to make its function a basic feature of the Constitution, and, therefore, a part of its indestructible basic structure that would be beyond even the amending power under Article 368: Keshavananda Bharti, AIR 1973 SC 1461. Immunity from vagaries of changing political equations in the era of coalitions is another benefit.
Experience has shown that the constitutional bodies are comparatively more effective and immune from political and other extraneous influences than statutory bodies. The need for creation of a ‘strong Lokpal’ providing greater public confidence in its credibility is sufficient reason to prefer its constitutional status.
I may reiterate another aspect which I have been emphasizing for long. The Lokpal, in whatever form, is not a panacea for controlling corruption from all sources. A holistic view is necessary to take measures to cure as well as to prevent this evil in all its aspects. More than one measure is needed to provide complete remedy. A few illustrations would suffice.
Judicial accountability as a facet of judicial independence cannot be achieved without the effective accountability also of the lawyers, which is inadequate under the Advocates Act, 1961 giving the entire control over the conduct of lawyers only to a body of lawyers. Linkage between misconduct of some lawyer and that of the errant judge is common knowledge. Similarly, corruption of other professionals, corporates, media etc. has also to be addressed. Even the field of education is no longer sacrosanct. In short, the long term target of restoration of values as the strongest preventive measure must also be a part of the action plan.
Electoral reforms are necessary to curb the ill-effect of money and muscle power that breed corruption and criminalise politics; and reforms to prevent tax evasion contributing to increase of black money. Constitution Amendment Bill could also simultaneously introduce concurrent constitutional changes essential for a strong anti-corruption regime such as to Articles 105, 194 and 235. The impact of the JMM bribery case needs to be overcome by amending Articles 105 and 194 and codifying the privileges of the members.
Such a comprehensive programme alone can prevent as well as cure the malady; otherwise adding to the existing plethora of legislation on the subject would only be a symptomatic treatment instead of a permanent cure. There is no instant cure for a chronic disease. It requires a sober debate along the correct route.
Enlargement of the debate on the challenge at this juncture also provides the opportunity which must not be lost. Anna Hazare has provided this opportunity for an intensive search for the best method to combat rampant corruption. The churning process to find the best solution has begun. It is time for Hazare to derive satisfaction that his prime purpose is served. He should now leave it to those who are constitutionally entrusted with completing the task with the aid of all of the civil society in our inclusive democracy. I sincerely urge movement in this direction within the constitutional scheme.