The Chairman of the Parliamentary Standing Committee on the Lokpal Bill, on corruption and the most pragmatic ways to check it.
Rajya Sabha MP and Congress spokesperson Abhishek Singhvichaired the 30-member parliamentary panel that presented its voluminous report earlier this month on the Lokpal Bill 2011. The report has points of divergence with both the official Lokpal Bill draft and the Team Anna version. (The Union Cabinet on Tuesday night approved a Bill for the creation of the Lokpal with constitutional status that will have no control over the CBI but brings within its purview the Prime Minister with a number of safeguards.) Excerpts from an interview with Mukund Padmanabhan, held earlier in the day.
At the heart of the upsurge of public anger against corruption, which a strong Lokpal Bill has come to symbolise, is a basic truth. Namely, that our criminal justice system, particularly when it comes to corruption, is constantly subverted by political interference in the work of investigation and prosecution agencies. Do you agree?
I agree with the sentiment but not with the way you put it. I think you are entirely right in that there is a great amount of legitimate frustration about the criminal justice system, the sloth and the inefficiency.
I will not deny political interference. But I believe that its statistical occurrence is highly exaggerated. Also, at least during the last five years of transparency and media scrutiny, it is not that easy for the CBI and the police forces to convert black into white. Lastly, the attempts at political interference may be greater than the actual results because there is a great amount of both judicial and media scrutiny.
So in other words, judicial delay is a bigger problem than the lack of an independent investigation and prosecution mechanism?
Far bigger. The second is definitely there, but exaggerated.
Your preface in the standing committee report on the Lokpal Bill presented to the Rajya Sabha strikes a philosophical note. You state that the Lokpal Bill resides in the limited ex-post facto punitive sphere and is no substitute for significant “prophylactic” initiatives. It’s impossible to disagree with this, but it raises the obvious question: what have we been doing about preventive mechanisms all this while?
Progress has been made but it has been slow. But during the last year and a half, the progress on corruption — including prophylactic measures — has been remarkable. Unfortunately, in the debate on the Lokpal, which is a very important punitive measure, the prophylactic and policy initiatives have got lost. As I said in my report, sometimes policy is more important than law.
Allow me to list you some of the steps taken. Roughly 62 bilaterals and 20 further one-to-one treaties [have been signed] in the last two years on black money. It now means that there are 80-odd countries around the world that are obliged to give you information on this. The Whistleblowers’ Bill, a recommendation of our standing committee, will come [before Parliament] very shortly. The Citizens’ Charter Bill will possibly be introduced with the Lokpal Bill or in the next session.
The report of the Ashok Chawla Committee [set up to recommend how government allocates key natural resources] has made specific suggestions. According to me, there are three areas — realty, mining, discretionary powers. There is a listing of all the discretionary powers at the Central-government-level in each department, many of which can be abolished. This itself will make a huge difference. On mining, we are on the threshold of a brand new law; the existing mining law is antiquated and breeds corruption. As for real estate, both the Land Acquisition Bill and other policy initiatives on black money will make a lot of difference. These initiatives will have an effect if they are applied synergistically and given at least two years to operate.
Coming back to the Lokpal, there were sharp divisions in the parliamentary panel you headed on key issues. At the same time, you suggested that the dissent was minimal and there was a considerable amount of unity on a range of issues. In what areas do you think the standing committee made advances vis-à-vis the earlier draft of the Lokpal Bill?
This is a very important question. This report is nowhere like a government draft. Chalk and cheese, earth and sky — that is the difference. Our approach has been not merely to look at the Lokpal Bill draft, or the Jan Lokpal draft or the Aruna Roy draft.
Ours has been to see that the overall structure is workable, valid and efficacious. We believe that in many areas the Jan Lokpal is too starry-eyed and idealistic, and not workable. In some areas, we believe the government draft is retrogressive.
So we have struck a new course. Consider the dissent, which there has been a lot of misinformation about. This was not a normal committee report. It was unusual because in two-and-a-half months, it decided on 23 issues, not just one or two like most committees. Of the 23, there was absolute unanimity on 12 issues. Of the remaining 11, in three issues there was a majority of 29 and only one dissenting voice. On another six, there were 22 for and eight dissents. There was real dissent only on two issues — the CBI (20 to 10) and the inclusion of the lower bureaucracy (17 to 13).
But going by Team Anna and the attention they receive in the media, aren’t these issues the nub? And on the question of including the Prime Minister under the Lokpal, the standing committee left this to Parliament…
Sorry, but there is no dissent there. I could have given the majority view which was for inclusion with deferred prosecution. I was excessively reasonable in putting forward three [divergent] views, all of which had resonance.
Team Anna alleged that by leaving the Citizens’ Charter and the lower bureaucracy out, you had disrespected Parliament and violated the Sense of the House resolution passed in August.
This is a complete misunderstanding. Look at what the Finance Minister said in his reply to the debate in Parliament, which is quoted in the report. He said, “This House agrees in principle on the Citizens Charter, Lower Bureaucracy to be brought under Lokpal through appropriate mechanism and establishment of Lok Ayuktas in the States.” What this suggests is that we must pass a law on the Citizens’ Charter, which we are doing. As for the Lok Ayuktas, we have recommended a common Lokpal-Lok Ayukta Bill, something that goes against the government draft. Being under the Lokpal only applies to the lower bureaucracy. But look at the resolution closely. It says the lower bureaucracy must be brought under the Lokpal through an “appropriate mechanism”…
…Which you imply you have addressed by making the Central Vigilance Commission, which will cover the ‘C’ and ‘D’ level employees, accountable in a way to the Lokpal?
Yes, there is a method to the madness. We don’t want a top-heavy Lokpal set up. We want it to be lean, mean and efficient. To prevent a new organisation from becoming top heavy, if you utilise the CVC, which for the first time will have ‘C’ class employees under it, aren’t we improving the situation? The CVC will then be obliged to file two or three monthly reports to the Lokpal, which will then issue advisories on the basis of this.
The standing committee has recommended both Group ‘A’ and ‘B’ officials come under the Lokpal, unlike the government draft which included only ‘A’. We made a huge jump — this is being forgotten in the controversy. From ‘A’ to ‘B’, the group comprises everyone down from Prime Minister to Section Officer.
Wasn’t the Lokpal conceived as a new mechanism to deal with medium-ticket and big-ticket corruption? Or was it to go below level ‘C’ and include drivers, clerks and peons?
I am not suggesting that drivers and peons are not corrupt. But the Section Officer is the first to write an opinion on the file. From there on it goes upwards. We have said that the ‘C’ group which was not covered until now should come under the CVC. What wrong have we done? They speak as if we have cheated the nation.
There is also a certain amount of misinformation circulating regarding the CBI and investigation. The report deals entirely with Lokpal-referred investigations. The suggestions in it regarding preliminary inquiry, abolition of sanction, separation of investigation and prosecution et cetera are all recommendations made in the context of Lokpal-referred investigation.
It does not seek to deal with a large number of other cases dealt with by the CBI, including murders or those referred to the agency by the higher judiciary.
Isn’t it odd that a legislation to check corruption in government should include NGOs, corporates and the media? This seems a little like tit-for-tat. The NGOs and the media wanted strong legislation against official corruption, so lets put them into the net as well.
This is not true. We have included only NGOs, companies, associations, trusts owned or controlled by the government or those that receive large public donations. The other test is whether they receive donations above a certain amount under the Foreign Contribution Regulation Act. There are figures to show the volume of foreign funding is enormous and the accountability of this is very limited.
And this is necessary? Wouldn’t it dilute the work of a lean, mean Lokpal?
This is necessary because you are dealing with corruption. Today, corruption is accountability. Look at the United Kingdom Bribery Act, a remarkable piece of legislation, which applies to literally everybody — the public and private sectors, U.K. firms acting abroad, non-U.K. citizens acting in the U.K. We have said we need a model like this in tackling bribery. You can’t draw artificial Chinese walls when it comes to a particular sector.
DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE FORTY EIGHTH REPORT ON THE LOKPAL BILL, 2011
1. In a nut shell, therefore, this Committee could become legally operational only w.e.f. September 23, 2011 and has completed hearing witnesses on 4th November, 2011. It had its total deliberations including Report adoption spread over 14 meetings, together aggregating 40 hours within the space of ten weeks commencing from September 23, 2011 and ending December 7, 2011. [Para 2.6.]
2. Though not specific to this Committee, it is an established practice that all 24 Parliamentary Standing Committees automatically lapse on completion of their one year tenure and are freshly constituted thereafter. This results in a legal vacuum, each year, of approximately two to three weeks and occasionally, as in the present case, directly affects the urgent and ongoing business of the Committee. The Committee would respectfully request Parliament to reconsider the system of automatic lapsing. Instead, continuity in Committees but replacement of Members on party-wise basis would save time. [Para 2.7.]
The Concept of Lokpal: Evolution and Parliamentary History
3. A proposal in this regard was first initiated in the Lok Sabha on April 3, 1963 by the Late Dr. LM Singhvi, MP2. While replying to it, the then Law Minister observed that though the institution seemed full of possibilities, since it involved a matter of policy, it was for the Prime Minister to decide in that regard3. Dr. LM Singhvi then personally communicated this idea to the then Prime Minister, Pandit Jawahar Lal Nehru who in turn, with some initial hesitation, acknowledged that it was a valuable idea which could be incorporated in our institutional framework. On 3rd November, 1963, Hon’ble Prime Minister made a statement in respect of the possibilities of this institution and said that the system of Ombudsman fascinated him as the Ombudsman had an overall authority to deal with the charges of corruption, even against the Prime Minister, and commanded the respect and confidence of all4. [Para 3.3]
4. Thereafter, to give effect to the recommendations of the First Administrative Reforms Commission, eight Bills were introduced in the Lok Sabha from time to time. However, all these Bills lapsed consequent upon the dissolution of the respective Lok Sabhas, except in the case of the 1985 Bill which was subsequently withdrawn after its introduction. A close analysis of the Bills reflects that there have been varying approaches and shifting foci in scope and jurisdiction in all these proposed legislations. The first two Bills viz. of 1968 and of 1971 sought to cover the entire universe of bureaucrats, Ministers, public sector undertakings, Government controlled societies for acts and omissions relating to corruption, abuse of position, improper motives and maladministration.The 1971 Bill, however, sought to exclude the Prime Minister from its coverage. The 1977 Bill broadly retained the same coverage except that corruption was subsequently sought to be defined in terms of IPC and Prevention of Corruption Act. Additionally, the 1977 Bill did not cover maladministration as a separate category, as also the definition of “public man” against whom complaints could be filed did not include bureaucrats in general. Thus, while the first two Bills sought to cover grievance redressal in respect of maladministration in addition to corruption, the 1977 version did not seek to cover the former and restricted itself to abuse of office and corruption by Ministers and Members of Parliament. The 1977 Bill covered the Council of Ministers without specific exclusion of the Prime Minister. The 1985 Bill was purely focused on corruption as defined in IPC and POCA and neither sought to subsume mal-administration or mis-conduct generally nor bureaucrats within its ambit. Moreover, the 1985 Bill impliedly included the Prime Minister since it referred to the office of a Minister in its definition of “public functionary”.
The 1989 Bill restricted itself only to corruption, but corruption only as specified in the POCA and did not mention IPC. It specifically sought to include the Prime Minister, both former and incumbent.
Lastly, the last three versions of the Bill in 1996, 1998 and 2001, all largely;
(a) focused only on corruption;
(b) defined corruption only in terms of POCA;
(c) defined “public functionaries” to include Prime Minister, Ministers and MPs;
(d) did not include bureaucrats within their ambit. [Para 3.5]
5. Though the institution of Lokpal is yet to become a reality at the Central level, similar institutions of Lokayuktas have in fact been setup and are functioning for many years in several States. In some of the States, the institution of Lokayuktas was set up as early as in 1970s, the first being Maharashtra in 1972. Thereafter, State enactments were enacted in the years 1981 (M.P.), 1983 (Andhra Pradesh and Himachal Pradesh), 1984 (Karnataka), 1985 (Assam), 1986 (Gujarat), 1995 (Delhi), 1999 (Kerala), 2001 (Jharkhand), 2002 (Chhatisgarh) and 2003 (Haryana). At present, Lokayuktas are in place in 17 States and one Union Territory. However, due to the difference in structure, scope and jurisdiction, the effectiveness of the State Lokayuktas vary from State to State. It is noteworthy that some States like Gujarat, Karnataka, Bihar, Rajasthan and Andhra Pradesh have made provisions in their respective State Lokayuktas Act for suo motu investigation by the Lokpal. In the State Lokayukta Acts of some States, the Lokayukta has been given the power for prosecution and also power to ensure compliance of its recommendations. However, there is a significant difference in the nature of provisions of State Acts and in powers from State to State. Approximately nine States in India have no Lokayukta at present. Of the States which have an enactment, four States have no actual appointee in place for periods varying from two months to eight years. [Para 3.8]
Citizens’ Charter and Grievance Redressal Mechanism
6. The Committee believes that while providing for a comprehensive Grievance Redressal Mechanism is absolutely critical, it is equally imperative that this mechanism be placed in a separate framework which ensures speed, efficiency and focus in dealing with citizens’ grievances as per a specified Citizens’ Charter.
The humongous number of administrative complaints and grievance redressal requests would critically and possibly fatally jeopardize the very existence of a Lokpal supposed to battle corruption. At the least, it would severally impair its functioning and efficiency. Qualitatively, corruption and mal-administration fall into reasonably distinct watertight and largely non-overlapping, mutually exclusive compartments. The approach to tackling such two essentially distinct issues must necessarily vary in content, manpower, logistics and structure. The fact that this Committee recommends that there must be a separate efficacious mechanism to deal with Grievance Redressal and Citizens’ Charter in a comprehensive legislation other than the Lokpal Bill does not devalue or undermine the vital importance of that subject. [Para 4.15]
7. Consequently the Committee strongly recommends the creation of a separate comprehensive enactment on this subject and such a Bill, if moved through the Personnel/Law Ministry and if referred to this Standing Committee, would receive the urgent attention of this Committee. Indeed, this Committee, in its 29th Report on “Public Grievance Redressal Mechanism”, presented to Parliament in October, 2008 had specifically recommended the enactment of such a mechanism. [Para 4.16]
8. To emphasize the importance of the subject of Citizens’ Charter and to impart it the necessary weight and momentum, the Committee is of the considered opinion that any proposed legislation on the subject:
(i) should be urgently undertaken and be comprehensive and all inclusive;
(ii) such enactment should, subject to Constitutional validity, also be applicable for all States as well in one uniform legislation;
(iii) must provide for adequate facilities for proper guidance of the citizens on the procedural and other requirements while making requests.
(iv) must provide for acknowledgement of citizen’s communications within a fixed time frame;
(v) must provide for response within stipulated time frame;
(vi) must provide for prevention of spurious or lame queries from the department concerned to illegally/unjustifiably prolong/extend the time limit for response;
(vii) must provide for clearly identifiable name tags for each employee of different Government departments;
(viii) must provide for all pending grievances to be categorized subject-wise and notified on a continually updated website for each department;
(ix) must provide for a facilitative set of procedures and formats, both for complaints and for appeals on this subject – along the lines of the Information Commissioners system set up under the RTI;
(x) must, in the event that the proposed Central law does not cover states, make strong recommendations to have similar enactments for grievance redressal/citizen charter at each State level;
(xi) may provide for exclusionary or limited clauses in the legislation to the effect that Citizen Charter should not include services involving constraints of supply e.g. power, water, etc. but should include subjects where there is no constraint involved e.g. birth certificates, decisions, assessment orders. These two are qualitatively different categories and reflect an important and reasonable distinction deserving recognition without which Government departments will be burdened with the legal obligation to perform and provide services or products in areas beyond their control and suffering from scarcity of supply. [Para 4.17]
9. The Committee strongly feels that the harmonious synchronization of the RTI Act and of the Citizens’ Charter and Public Grievances Redressal Mechanism will ensure greater transparency and accountability in governance and enhance the responsiveness of the system to the citizens’ Needs/expectations/grievances. [Para 4.18]
10. Lastly, the Committee wishes to clarify that the conclusion of the Hon’ble Union Minister for Finance on the Floor of the House quoted in Para 1.8 above of the Report does not intend to direct or mandate or bind or oblige this Committee to provide for a Citizen’s Charter within the present Lokpal Bill alone. The Committee reads the quoted portion in para 1.8 above to mean and agree in principle to provide for a Citizen’s Charter/Grievance Redressal system but not necessarily and inexorably in the same Lokpal Bill. Secondly, the reference to ‘appropriate mechanism’ in para 1.8 above further makes it clear that there must be a mechanism dealing with the subject but does not require it to be in the same Lokpal Bill alone. Thirdly, the reference in para 1.8 above to the phrase ‘under Lokpal’ is not read by the Committee to mean that such a mechanism must exist only within the present Lokpal Bill. The Committee reads this to mean that there should be an appropriate institution to deal with the subject of Citizen’s Charter/Grievance redressal which would be akin to the Lokpal and have its features of independence and efficacy, but not that it need not be the very same institution i.e. present Lokpal. Lastly, the Committee also takes note of the detailed debate and divergent views of those who spoke on the Floor of both Lok Sabha and Rajya Sabha on this issue and concludes that no binding consensus or resolution to the effect that the Grievances Redressal/Citizen’s Charter mechanism must be provided in the same institution in the present Lokpal Bill, has emerged [Para 4.19]
11. Contextually, the issues and some of the suggestions in this Chapter may overlap with and should, therefore, be read in conjunction with Chapter 13 of this report. Though the Committee has already opined that the issue of grievance redressal should be dealt with in a separate legislation, the Committee hereby also strongly recommends that there should be a similar declaration either in the same Chapter of the Lokpal or in a separate Chapter proposed to be added in the Indian Constitution, giving the same constitutional status to the citizens grievances and redressal machinery.[Para 4.20]
12. This recommendation to provide the proposed Citizen Charter and Grievances Redressal Machinery the same Constitutional status as the Lokpal also reflects the genuine and deep concern of this Committee about the need, urgency, status and importance of a citizen’s charter/grievance machinery. The Committee believes that the giving of the aforesaid constitutional status to this machinery would go a long way in enhancing its efficacy and in providing a healing touch to the common man. Conclusions and recommendations in this regard made in para 13.12 (j) and (k) should be read in conjunction herein.[Para 4.21]
13. Furthermore, the Committee believes that this recommendation herein is also fully consistent with the letter and spirit of para 1.8 above viz. the conclusions of the Minister of Finance in the Lower House recorded in para 1.8 above. [Para 4.22]
The Prime Minister : Full Exlusion Versus Degrees of Inclusion
14. The issue of the Prime Minister’s inclusion or exclusion or partial inclusion or partial exclusion has been the subject of much debate in the Committee. Indeed, this has occupied the Committee’s deliberations for at least three different meetings. Broadly, the models / options which emerged are as follows:
(a) The Prime Minister should be altogether excluded, without exception and without qualification.
(b) The Prime Minister should altogether be included, without exception and without qualification ( though this view appears to be that of only one or two Members).
(c) The Prime Minister should be fully included, with no exclusionary caveats but he should be liable to action / prosecution only after demitting office.
(d) The Prime Minister should be included, with subject matter exclusions like national security, foreign affairs, atomic energy and space. Some variants and additions suggested included the addition of “national interest” and “public order” to this list of subject matter exclusions.
(e) One learned Member also suggested that the Prime Minister be included but subject to the safeguard that the green signal for his prosecution must be first obtained from either both Houses of Parliament in a joint sitting or some variation thereof. [Para 5.22]
15. It may be added that so far as the deferred prosecution model is concerned, the view was that if that model is adopted, there should be additional provisions limiting such deferment to one term of the Prime Minister only and not giving the Prime Minister the same benefit of deferred prosecution in case the Prime Minister is re-elected. [Para 5.23]
16. In a nut shell, as far as the overwhelming number of Members of the Committee are concerned, it was only three models above viz. as specified in paras (a), (c) and (d) in para 5.17 above which were seriously proposed. [Para 5.24]
17. Since the Committee finds that each of the views as specified in paras (a), (c) and (d) in para 5.17 above had reasonably broad and diverse support without going into the figures for or against or into the names of individual Members, the Committee believes that, in fairness, all these three options be transmitted by the Committee as options suggested by the Committee, leaving it to the good sense of Parliament to decide as to which option is to be adopted. [Para 5.25]
18. It would be, therefore, pointless in debating the diverse arguments in respect of each option or against each option. In fairness, each of the above options has a reasonable zone of merit as also some areas of demerit. The Committee believes that the wisdom of Parliament in this respect should be deferred to and the Committee, therefore, so opines. [Para 5.26]
Members of Parliament: Vote, Speech and Conduct within the House
19. The Committee strongly feels that constitutional safeguards given to MPs under Article 105 are sacrosanct and time-tested and in view of the near unanimity in the Committee and among political parties on their retention, there is no scope for interfering with these provisions of the Constitution. Vote, conduct or speech within the House is intended to promote independent thought and action, without fetters, within Parliament. Its origin, lineage and continuance is ancient and time-tested. Even an investigation as to whether vote, speech or conduct in a particular case involves or does not involve corrupt practices, would whittle such unfettered autonomy and independence within the Houses of Parliament down to vanishing point. Such immunity for vote, speech or conduct within the Houses of Parliament does not in any manner leave culpable MPs blameless or free from sanction. They are liable to and, have, in the recent past, suffered severe parliamentary punishment including expulsion from the Houses of Parliament, for alleged taking of bribes amounting to as little as Rs. 10,000/- for asking questions on the floor of the House. It is only external policing of speech, vote or conduct within the House that Article 105 frowns upon. It leaves such speech, vote and conduct not only subject to severe intra-parliamentary scrutiny and action, but also does not seek to affect corrupt practices or any other vote, speech or conduct outside Parliament. There is absolute clarity and continued unanimity on the necessity for this limited immunity to be retained. Hence, speculation on constitutional amendment in this regard is futile and engenders interminable delay.[Para 6.19]
20. Consequently, the existing structure, mechanism, text and context of clauses 17 (1) (c) and 17 (2) in the Lokpal Bill 2011 should be retained.[Para 6.20]
Lokpal and State Lokayuktas: Single Enactment and Uniform Standards
21. The Committee finds merit in the suggestion for a single comprehensive federal enactment dealing with Lokpal and State Lokayuktas. The availability of uniform standards across the country is desirable; the prosecution of public servants based upon widely divergent standards in neighboring states is an obvious anomaly. The Committee has given its earnest attention to the constitutional validity of a single enactment subsuming both the Lokpal and Lokayukta and concludes that such an enactment would be not only desirable but constitutionally valid, inter alia because,
(a) The legislation seeks to implement the UN Convention on Corruption ratified by India.
(b) Such implementing legislation is recognized by Article 253 and is treated as one in List III of the 7th Schedule.
(c) It gets additional legislative competence, inter-alia, individually or jointly under Entries 1, 2 and 11A of List-III.
(d) A direct example of provision for National Human Rights Commission and also for State Human Rights Commissions in the same Act is provided in the Protection of the Human Rights Act 1986 seeking to implement the UN Convention for the Protection of Human Rights.
(e) Such Parliamentary legislation under Article 253, if enacted, can provide for repealing of State Lokayukta Acts; subject, however, to the power of any State to make State specific amendments to the federal enactments after securing Presidential assent for such State specific amendments.[Para 7.26]
22. Additionally, it is recommended that the content of the provisions dealing with State Lokayuktas in the proposed central/ federal enactment must be covered under a separate chapter in the Lokpal Bill. That may be included in one or more chapters possibly after Chapter II and before Chapter III as found in the Lokpal Bill 2011. The entire Lokpal Bill 2011 would have to incorporate necessary changes and additions, mutatis mutandis, in respect of the State Lokayukta institutions. To give one out of many examples, the Selection Committee would be comprised of the State Chief Minister, the Speaker of the Lower House of the State, the Leader of Opposition in the Lower House, the Chief Justice of the High Court and a joint nominee of the State Election Commissioner, the State Auditor General and State PSC Chairman or, where one or more of such institutions is absent in the State, a joint nominee of comparable institutions having statutory status within the State.[Para 7.27]
23. All these State enactments shall include the Chief Minister within their purview. The Committee believes that the position of the State Chief Minister is not identical to that of the Prime Minister. The arguments for preventing instability and those relating to national security or the image of the country do not apply in case of a Chief Minister. Finally, while Article 356 is available to prevent a vacuum for the post of Chief Minister, there is no counterpart constitutional provision in respect of the federal Government.[Para 7.28]
24. Article 51 (c) of the Directive Principles of State Policy enjoining the federation to “foster respect for international law and treaty obligations……………..” must also be kept in mind while dealing with implementing legislations pursuant to international treaties, thus providing an additional validating basis for a single enactment.[Para 7.29]
25. The Committee recommends that the Lokpal Bill 2011 may be expanded to include several substantive provisions which would be applicable for Lokayuktas in each State to deal with issues of corruption of functionaries under the State Government and employees of those organizations controlled by the State Government, but that, unlike the Lokpal, the state Lokayuktas would cover all classes of employees.[Para 7.30]
26. The Committee recommends that if the above recommendation is implemented the Lokpal Bill 2011 may be renamed as “Lokpal and Lokayuktas Bill 2011”[Para 7.31]
27. The Committee believes that the recommendations, made herein, are fully consistent with and implement, in letter and spirit, the conclusions of the Minister of Finance on the floor of the Houses in respect of establishment of Lokayuktas in the States, as quoted in para 1.8 above. The Committee is conscious of the fact that the few States which have responded to the Secretariat’s letter sent to each and every State seeking to elicit their views, have opposed a uniform Central federal Lokpal and Lokayukta Bill and, understandably and expectedly, have sought to retain their powers to enact State level Lokayukta Acts. The Committee repeats and reiterates the reasons given hereinabove, in support of the desirability of one uniform enactment for both Lokpal and Lokayuktas. The Committee also reminds itself that if such a uniform Central enactment is passed, it would not preclude States from making any number of State specific amendments, subject to prior Presidential assent, as provided in the Indian Constitution. The Committee, therefore, believes that it has rightly addressed the two issues which arise in this respect viz. the need and desirability for a uniform single enactment and, secondly, if the latter is answered in the affirmative, that such a uniform enactment is Constitutionally valid and permissible.[Para 7.32]
28. Since this report, and especially this chapter, recommends the creation of a uniform enactment for both Central and State Lokayuktas, it is reiterated that a whole separate chapter (or, indeed, more than one chapter) would have to be inserted in the Lokpal Bill of 2011 providing for State specific issues. Secondly, this would have to be coupled with mutatis mutandis changes in other parts of the Act to accommodate the fact that the same Act is addressing the requirement of both the federal institution and also the State level institution.[Para 7.33]
29. Furthermore, each and every chapter and set of recommendations in this report should also be made applicable, mutatis mutandis, by appropriate provisions in the Chapter dealing with State Lokayuktas. [Para 7.34]
30. Although it is not possible for this Committee to specifically list the particularised version of each and every amendment or adaptation required to the Lokpal Bill, 2011 to subsume State Lokayuktas within the same enactment, it gives below a representative non-exhaustive list of such amendments/adaptations, which the Government should suitably implement in the context of one uniform enactment for both Lokpal and Lokayuktas. These include :
(a) Clause 1 (2) should be retained even for the State Lokayukta provisions since State level officers could well be serving in parts of India other than the State concerned as also beyond the shores of India.
(b) The Chief Minister must be included within the State Lokayukta on the same basis as any other Minister of the Council of Ministers at the State level. Clause 2 of the 2011 Bill must be amended to include Government servants at the State level. The competent authority in each case would also accordingly change e.g. for a Minister of the Council of Minister, it would be the Chief Minister; for MLAs, it would be the presiding officer of the respective House and so on and so forth. The competent authority for the Chief Minister would be the Governor.
(c) As regards Clause 3, the only change would be in respect of the Chairperson, which should be as per the recommendation made for the Lokpal.
(d) As regards the Selection Committee, the issue at the Lokayukta level has already been addressed above.
(e) References in the Lokpal context to the President of India shall naturally have to be substituted at the Lokayukta level by references to the Governor of the State.
(f) The demarcation of the criminal justice process into five broad areas from the initiation of complaint till its adjudication, as provided in Chapter 12, should also apply at the State Lokayukta level. The investigative agency, like the CBI, shall be the anti-corruption unit of the State but crucially, it shall be statutorily made independent by similar declarations of independence as already elaborated in the discussion in Chapter 12. All other recommendations in Chapter 12 can and should be applied mutatis mutandis for the Lokayukta.
(g) Similarly, all the recommendations in Chapter 12 in respect of departmental inquiry shall apply to the Lokayukta with changes made, mutatis mutandis, in respect of State bodies. The State Vigilance Commission/machinery would, in such cases, discharge the functions of the CVC. However, wherever wanting, similar provisions as found in the CVC Act buttressing the independence of the CVC shall be provided.
(h) The recommendations made in respect of elimination of sanction as also the other recommendations, especially in Chapter 12, relating to Lokpal, can and should be applied mutatis mutandis in respect of Lokayukta.
(i) Although no concrete fact situation exists in respect of a genuine multi- State or inter-State corruption issue, the Committee opines that in the rare and unusual case where the same person is sought to be prosecuted by two or more State machineries of two or more Lokayuktas, there should be a provision entitling the matter to be referred by either of the States or by the accused to the Lokpal at the federal level, to ensure uniformity and to eliminate turf wars between States or jurisdictional skirmishes by the accused.
(j) As already stated above, the coverage of the State Lokayukta, unlike the Lokpal, would extend to all classes of employees, including employees of state owned or controlled entities. [Para 7.35]
Lower Bureaucracy: Degrees of Inclusion
31. The Committee, therefore, recommends
(a) That for the Lokpal at the federal level, the coverage should be expanded to include Group A and Group B officers but not to include Group C and Group D.
(b) The provisions for the State Lokayuktas should contain similar counterpart reference, for purposes of coverage, of all similar categories at the State level which are the same or equivalent to Group A and Group B for the federal Lokpal. Though the Committee was tempted to provide only for enabling power for the States to include the State Lokayuktas to include the lower levels of bureaucracy like groups ‘C’ and ‘D’ at the State level, the Committee, on careful consideration, recommends that all the groups, including the lower bureaucracy at the State level and the groups equivalent with ‘C’ and ‘D’ at the State level should also be included within the jurisdiction of State Lokayuktas with no exclusion. Employees of state owned or controlled entities should also be covered.
(c) The Committee is informed by the DoPT that after the Sixth Pay Commission Report, Group-D has been/will be transposed and submerged fully in Group-C. In other words, after the implementation of the Sixth Pay Commission Report, which is already under implementation, Group-D will disappear and there will be only Group-C as far as the Central Government employees are concerned.
(i) Consequently, Group-C, which will shortly include the whole ofGroup-D will comprise a total number of approximately 30 lakhs (3million) employees. Though the figures are not fully updated, A+Bclasses recommended for inclusion by this Committee would comprise just under 3 lakhs employees. With some degree of approximation, the number of Railway employees from group A to D inclusive can be pegged at about 13½ lakhs (as on March 2010). If Central Government PSUs are added, personnel across all categories (Group A, B, C and D as existing) would be approximately an additional 15 lakhs employees. Post and Telegraph across all categories would further number approximately 4½ lakhs employees. Hence the total, on the aforesaid basis (which is undoubtedly an approximation and a 2010 figure) for Group A to D (soon, as explained above, to be only Group-C) + Railways + Central PSUs + Post and Telegraph would be approximately 63 lakhs, or at 2011 estimates, let us assume 65 lakhs i.e. 6.5 million.
(ii) On a conservative estimate of one policing officer per 200 employees (a ratio propounded by several witnesses including Team Anna), approximately 35000 employees would be required in the Lokpal to police the aforesaid group of Central Government employees (including, as explained above, Railways, Central PSUs, P&T etc.). This policing is certainly not possible by the proposed nine member Lokpal. The Lokpal would have to spawn a bureaucracy of at least 35000 personnel who would, in turn, be recruited for a parallel Lokpal bureaucracy. Such a mammoth bureaucracy, till it is created, would render the Lokpal unworkable. Even after it is created, it may lead to a huge parallel bureaucracy which would set in train its own set of consequences, including arbitrariness, harassment and unfair and illegal action by the same bureaucracy which, in the ultimate analysis would be nothing but a set of similar employees cutting across the same A, B and C categories. As some of the Members of the Committee, in a lighter vein put it, one would then have to initiate a debate on creating a super Lokpal or a Dharampal for the policing of the new bureaucracy of the Lokpal institution itself.
(iia) The Committee also notes that as far as the Lokpal institution is concerned, it is proposed as a new body and there is no such preexisting Lokpal bureaucracy available. In this respect, there is a fundamental difference between the Lokpal and Lokayuktas, the latter having functioned, in one form or the other in India for the last several decades, with a readily available structure and manpower in most parts of India.
(iii) If, from the above approximate figure of 65 lakhs, we exclude C and D categories (as explained earlier, D will soon become part of C) from Central Government, Railways, PSUs, Post and Telegraph etc., the number of A and B categories employees in these departments would aggregate approximately 7.75 lakhs. In other words, the aggregate of C and D employees in these classes aggregate approximately 57 or 58 lakhs. The Committee believes that this figure of 7.75 or 8 lakhs would be a more manageable, workable and desirable figure for the Lokpal institution, at least to start with.
(iv) The impression that inclusion of Group ‘A’ and B alone involves exclusion of large sections of the bureaucracy, must be dispelled. Though in terms of number, the aggregation of Groups ‘C’ and ‘D’ is an overwhelming percentage of total Central Government employees, Groups ‘A’ and B include the entire class above the supervisory level. Effectively, this means that virtually all Central Government employees at the Section Officer level and above would be included. It is vital to emphasize that this demarcation has to be viewed in functional terms, since it gives such categories significant decision making power in contra-distinction to mere numbers and necessarily subsumes a major chunk of medium and big ticket corruption.
(v) Another misconception needs to be clarified. There is understandable and justifiable anger that inclusion of Group C and D would mean exclusion of a particular class which has tormented the common man in different ways over the years viz. Tehsildar, Patwari and similarly named or equivalent officers. Upon checking, the Secretariat has clarified that these posts are State Government posts under gazette notification notified by the State Government and hence the earlier recommendation of this Committee will enable their full inclusion.
(vi) We further recommend that for the hybrid category of Union Territories, the same power be given as is recommended above in respect of State Lokayuktas. The Committee also believes that this is the appropriate approach since a top heavy approach should be avoided and the inclusionary ambit should be larger and higher at the state level rather than burdening the Lokpal with all classes of employees.
(vii) As of now, prior to the coming into force of the Lokpal Act or any of the recommendations of this report, Group C and D officers are not dealt with by the CVC. Group C & D employees have to be proceeded against departmentally by the appropriate Department Head, who may either conduct a departmental enquiry or file a criminal corruption complaint against the relevant employee through the CBI and/or the normal Police forces. The Committee now recommends that the entire Group C & D, (later only Group C as explained above) shall be brought specifically under the jurisdiction of the CVC. In other words, the CVC, which is a high statutory body of repute and whose selection process includes the Leader of the Opposition, should be made to exercise powers identical to or at least largely analogous, in respect of these class C and class D employees as the Lokpal does for Group A and B employees. The ultimate Lokpal Bill/Act should thus become a model for the CVC, in so far as Group C & D employees are concerned. If that requires large scale changes in the CVC Act, the same should be carried out. This would considerably strengthen the existing regime of policing, both departmentally and in terms of anti-corruption criminal prosecutions, all Group C & D employees and would not in any manner leave them either unpoliced or subject to a lax or ineffective regime of policing.
(viii) Furthermore, this Committee recommends that there would be broad supervisory fusion at the apex level by some appropriate changes in the CVC Act. The CVC should be made to file periodical reports, say every three months, to the Lokpal in respect of action taken for these class C and D categories. On these reports, the Lokpal shall be entitled to make comments and suggestions for improvement and strengthening the functioning of CVC, which in turn, shall file, appropriate action taken reports with the Lokpal.
(ix) Appropriate increase in the strength of the CVC manpower, in the light of the foregoing recommendations, would also have to be considered by the Government.
(x) The Committee also feels that this is the start of the Lokpal institution and it should not be dogmatic and inflexible on any of the issues. For a swift and efficient start, the Lokpal should be kept slim, trim, effective and swift. However, after sometime, once the Lokpal institution has stabilized and taken root, the issue of possible inclusion of Group C classes also within the Lokpal may be considered. This phase-wise flexible and calibrated approach would, in the opinion of this Committee, be more desirable instead of any blanket inclusion of all classes at this stage.
(xi) Another consideration which the Committee has kept in mind is the fact that if all the classes of higher, middle and lower bureaucracy are included within the Lokpal at the first instance itself, in addition to all the aforesaid reasons, the CVC’s role and functioning would virtually cease altogether, since the CVC would have no role in respect of any class of employee and would be reduced, at best, to a vigilance clearance authority. This would be undesirable in the very first phase of reforms, especially since the CVC is a high statutory authority in this country which has, over the last half century, acquired a certain institutional identity and stability along with conventions and practices which ought not to be uprooted in this manner.
(d) All provisions for prior sanction / prior permission, whether under the CrPC or Prevention of Corruption Act or DSPE Act or related legislation must be repealed in respect of all categories of bureaucrats / government servants, whether covered by the Lokpal or not, and there should consequently be no requirement of sanction of any kind in respect of any class or category of officers at any level in any Lokpal and Lokayukta or , indeed, CVC proceedings ( for non Lokpal covered categories). In other words, the requirement of sanction must go not only for Lokpal covered personnel but also for non-Lokpal covered personnel i.e. class ‘C’ and ‘D’ (Class D, as explained elsewhere, will eventually be submerged into Class ‘C’). The sanction requirement, originating as a salutary safeguard against witch hunting has, over the years, as applied by the bureaucracy itself, degenerated into a refuge for the guilty, engendering either endless delay or obstructing all meaningful action. Moreover, the strong filtering mechanism at the stage of preliminary inquiry proposed in respect of the Lokpal, is a more than adequate safeguard, substituting effectively for the sanction requirement.
(e) No doubt corruption at all levels is reprehensible and no doubt corruption at the lowest levels does affect the common man and inflicts pain and injury upon him but the Committee, on deep consideration and reconsideration of this issue, concluded that this new initiative is intended to send a clear and unequivocal message, first and foremost, in respect of medium and big ticket corruption. Secondly, this Committee is not oblivious to the fact that jurisdiction to cover the smallest Government functionary at the peon and driver level ( class C largely covers peons, assistants, drivers, and so on, though it does also cover some other more “powerful” posts) may well provide an excuse and a pretext to divert the focus from combating medium and big ticket corruption to merely catching the smaller fry and building up an impressive array of statistical prosecutions and convictions without really being able to root out the true malaise of medium and big ticket corruption which has largely escaped scrutiny and punishment over the last 60 years.
(f) The Committee also believes that the recommendations in respect of scope of coverage of the lower bureaucracy, made herein, are fully consistent with the conclusions of the Minister of Finance on the floor of the Houses, as quoted in para 1.8 above of this Report. Firstly, the lower bureaucracy has been, partly, brought within the coverage as per the recommendations above and is, thus, consistent with the essence of the conclusion contained in para 1.8 above. Secondly, the Committee does not read para 1.8 above to meet an inevitable and inexorable mandate to necessarily subsume each and every group of civil servant (like Group ‘C’ or Group ‘D’, etc.). Thirdly, the in principle consensus reflected in para 1.8 would be properly, and in true letter and spirit, be implemented in regard to the recommendations in the present Chapter for scope and coverage of Lokpal presently. Lastly, it must be kept in mind that several other recommendations in this Report have suggested substantial improvements and strengthening of the provisions relating to policing of other categories of personnel like C and D, inter alia, by the CVC and/or to the extent relevant, to be dealt with as Citizens’ Charter and Grievance Redressal issues.[Para 8.18]
False Complaints and Complainants: Punitive Measures
32.. It cannot be gainsaid that after the enormous productive effort put in by the entire nation over the last few months for the creation of a new initiative like the Lokpal Bill, it would not and cannot be assumed to be anyone’s intention to create a remedy virtually impossible to activate, or worse in consequence than the disease. The Committee, therefore, starts with the basic principle that it must harmoniously balance the legitimate but competing demands of prevention of false, frivolous complaints on the one hand as also the clear necessity of ensuring that no preclusive bar arises which would act as a deterrent for genuine and bona fide complaints.[Para 9.6]
33. The Committee sees the existing provisions in this regard as disproportionate, to the point of being a deterrent.[Para 9.7]
34. The Committee finds a convenient analogous solution and therefore adopts the model which the same Committee has adopted in its recently submitted report on Judicial Standards and Accountability Bill, 2010 presented to the Rajya Sabha on August 30, 2011.[Para 9.8]
35. In para 18.8 of the aforesaid Report, the Committee, in the context of Judicial Standards and Accountability Bill, 2010 said : “The Committee endorses the rationale of making a provision for punishment for making frivolous or vexatious complaints. The Committee, however, expresses its reservation over the prescribed quantum of punishment both in terms of imprisonment which is up to 5 years and fine which is up to 5 lakh rupees. The severe punishment prescribed in the Bill may deter the prospective complainants from coming forward and defeat the very rationale of the Bill. In view of this, the Committee recommends that Government should substantially dilute the quantum of the punishment so as not to discourage people from taking initiatives against the misbehaviour of a judge. In any case, it should not exceed the punishment provided under the Contempt of Court Act. The Government may also consider specifically providing in the Bill a proviso to protect those complainants from punishment / penalty who for some genuine reasons fail to prove their complaints. The Committee, accordingly, recommends that the Bill should specifically provide for protection in case of complaints made ‘in good faith’ in line with the defence of good faith available under the Indian Penal Code.” [Para 9.9]
36. Consequently, in respect of the Lokpal Bill, the Committee recommends that, in respect of false and frivolous complaints, :
(a) The punishment should include simple imprisonment not exceeding six months;
(b) The fine should not exceed Rs.25000; and
(c) The Bill should specifically provide for protection in case of complaints made in good faith in line with the defence of good faith available under the Indian Penal Code under Section 52 IPC.[Para 9.10]
The Judiciary: To Include or Exclude
37. The Committee recommends:
(i) The Judiciary, comprising 31 odd judges of the Apex Court, 800 odd judges of the High Courts, and 20,000 odd judges of the subordinate judiciary are a part of a separate and distinct organ of the State. Such separation of judicial power is vitally necessary for an independent judiciary in any system and has been recognized specifically in Article 50 of the Indian Constitution. It is interesting that while the British Parliamentary democratic system, which India adopted, has never followed the absolute separation of powers doctrine between the Legislature and the Executive, as, for example, found in the US system, India has specifically mandated under its Constitution itself that such separation must necessarily be maintained between the Executive and the Legislature on the one hand and the Judiciary on the other.
(ii) Such separation, autonomy and necessary isolation is vital for ensuring an independent judicial system. India is justifiably proud of a vigorous (indeed sometimes over vigorous) adjudicatory judicial organ. Subjecting that organ to the normal process of criminal prosecution or punishment through the normal courts of the land would not be conducive to the preservation of judicial independence in the long run.
(iii) If the Judiciary were included simpliciter as suggested in certain quarters, the end result would be the possible and potential direct prosecution of even an apex Court Judge before the relevant magistrate exercising the relevant jurisdiction. The same would apply to High Court Judges. This would lead to an extraordinarily piquant and an untenable situation and would undermine judicial independence at its very root.
(iv) Not including the Judiciary under the present Lokpal dispensation does not in any manner mean that this organ should be left unpoliced in respect of corruption issues. This Committee has already proposed and recommended a comprehensive Judicial Standards and Accountability Bill which provides a complete in-house departmental mechanism, to deal with errant judicial behavior by way of censure, warning, suspension, recommendation or removal and so on within the judicial fold itself. The Committee deprecates the criticism of the Judicial Standards and Accountability Bill as excluding issues of corruption for the simple reason that they were never intended to be addressed by that Bill and were consciously excluded.
(v) As stated in para 21 of the report of this Committee on the Judicial Standards and Accountability Bill, to this report, the Committee again recommends, in the present context of the Lokpal Bill, that the entire appointment process of the higher judiciary needs to be revamped and reformed. The appointment process cannot be allowed and should not be allowed to continue in the hands of a self-appointed common law mechanism created by judicial order operating since the early 1990s. A National Judicial Commission must be set up to create a broad-based and comprehensive model for judicial appointments, including, if necessary, by way of amendment of Articles 124 and 217 of the Indian Constitution. Without such a fundamental revamp of the appointment process at source and at the inception, all other measures remain purely ex-post facto and curative. Preventive measures to ensure high quality judicial recruitment at the entrance point is vital.
(vi) It is the same National Judicial Commission which has to be entrusted with powers of both transfer and criminal prosecution of judges for corruption. If desired, by amending the provisions of the Constitution as they stand today, such proposed National Judicial Commission may also be given the power of dismissal / removal. In any event, this mechanism of the National Judicial Commission is essential since it would obviate allegations and challenges to the validity of any enactment dealing with judges on the ground of erosion or impairment of judicial independence. Such judicial independence has been held to be part of the basic structure of the Indian Constitution and is therefore unamendable even by way of an amendment of the Indian Constitution. It is for this reason that while this Committee is very categorically and strongly of the view that there should be a comprehensive mechanism for dealing with the trinity of judicial appointments, judicial transfers and criminal prosecution of judges, it is resisting the temptation of including them in the present Lokpal Bill. The Committee, however, exhorts the appropriate departments, with all the power at its command, to expeditiously bring a Constitutional Amendment Bill to address the aforesaid trinity of core issues directly impinging on the judicial system today viz. appointment of high quality and high caliber judges at the inception, non-discriminatory and effective transfers and fair and vigorous criminal prosecution of corrupt judges without impairing or affecting judicial independence.
(vii) The Committee finds no reason to exclude from the conclusions on this subject, the burgeoning number of quasi-judicial authorities including tribunals as also other statutory and non-statutory bodies which, where not covered under category ‘A’ and ‘B’ bureaucrats, exercise quasijudicial powers of any kind. Arbitrations and other modes of alternative dispute resolution should also be specifically covered in this proposed mechanism. They should be covered in any eventual legislation dealing with corruption in the higher judiciary. The Committee notes that a large mass of full judicial functions, especially from the High Courts has, for the last 30 to 40 years, been progressively hived off to diverse tribunals exercising diverse powers under diverse statutory enactments. The Committee also notes that apart from and in addition to such tribunals, a plethora of Government officials or other persona designata exercise quasi judicial powers in diverse situations and diverse contexts. Whatever has been said in respect of the judiciary in this chapter should, in the considered opinion of this Committee, be made applicable, with appropriate modifications in respect of quasi-judicial bodies, tribunals and persons as well. [Para 10.21]
The Lokpal: Search and Selection
38. To ensure flexibility, speed and efficiency on the one hand and representation to all organs of State on the other, the Committee recommends a Selection Committee comprising:-
(a) The Prime Minister of India- as Head of the Executive.
(b) The Speaker Lok Sabha, as Head of the Legislature.
(c) The Chief Justice of India-as Head of the Judiciary.
(d) The leader of the Opposition of the Lower House.
(e) An eminent Indian, selected as elaborated in the next paragraph.
N.B.: functionaries like the Chairman and Leader of the Opposition of the Upper House have not been included in the interests of compactness and flexibility. The Prime Minister would preside over the Selection Committee. [Para 11.18]
39. The 5th Member of the Selection Committee in (e) above should be a joint nominee selected jointly by the three designated Constitutional bodies viz., the Comptroller and Auditor General of India, the Chief Election Commissioner and the UPSC Chairman. This ensures a reasonably wide and representative degree of inputs from eminent Constitutional bodies, without making the exercise too cumbersome. Since the other Members of the Selection Committee are all exofficio, this 5th nominee of the aforesaid Constitutional bodies shall be nominated for a fixed term of five years. Additionally, it should be clarified that he should be an eminent Indian and all the diverse criteria, individually, jointly or severally, applicable as specified in Clause 4 (1) (i) of the Lokpal Bill 2011 should be kept in mind by the aforesaid three designated Constitutional nominators.[Para 11.19]
40. There should, however, be a proviso in Clause 4(3) to the effect that a Search Committee shall comprise at least seven Members and shall ensure representation 50 per cent to Members of SC’s and/or STs and/or Other Backward Classes and/or Minorities and/or Women or any category or combination thereof. Though there is some merit in the suggestion that the Search Committee should not be mandatory since, firstly, the Selection Committee may not need to conduct any search and secondly, since this gives a higher degree of flexibility and speed to the Selection Committee, the Committee, on deep consideration, finally opines that the Search Committee should be made mandatory. The Committee does so, in particular, in view of the high desirability of providing representation in the Search Committee as stated above which, this Committee believes, cannot be effectively ensured without the mandatory requirement to have a Search Committee. It should, however, be clarified that the person/s selected by the Search Committee shall not be binding on the Selection Committee and secondly, that, where the Selection Committee rejects the recommendations of the Search Committee in respect of any particular post, the Selection Committee shall not be obliged to go back to the Search Committee for the same post but would be entitled to proceed directly by itself. [ Para 11.20]
41. Over the years, there has been growing concern in India that the entire mass of statutory quasi judicial and other similar tribunals, bodies or entities have been operated by judicial personnel i.e. retired judges, mainly of the higher judiciary viz. the High Courts and the Supreme Court.[Para 11.20(A)]
42. There is no doubt that judicial training and experience imparts not only a certain objectivity but a certain technique of adjudication which, intrinsically and by training, is likely to lead to greater care and caution in preserving principles like fair play, natural justice, burden of proof and so on and so forth. Familiarity with case law and knowledge of intricate legal principles, is naturally available in retired judicial personnel of the higher judiciary.[Para11.20(B)]
43. However, when a new and nascent structure like Lokpal is being contemplated, it is necessary not to fetter or circumscribe the discretion of the appointing authority. The latter is certainly entitled to appoint judges to the Lokpal, and specific exclusion of judges is neither contemplated nor being provided. However, to consider, as the Lokpal Bill 2011 does, only former Chief Justices of India or former judges of the Supreme Court as the Chairperson of the Lokpal would be a totally uncalled for and unnecessary fetter. The Committee, therefore, recommends that clause 3(2) be suitably modified not to restrict the Selection Committee to selecting only a sitting or former Chief Justice of India or judge of the Supreme Court as Chairperson of the Lokpal.[Para 11.20(C)]
44. A similar change is not suggested in respect of Members of the Lokpal and the existing provision in clause 3 (2) (b) read with clause 19 may continue. Although the Committee does believe that it is time to consider tribunals staffed by outstanding and eminent Indians, not necessarily only from a pool of retired members of the higher judiciary, the Committee feels hamstrung by the Apex Court decision in L. Chandra Kumar v. Union of India 1997 (3) SCC 261 which has held and has been interpreted to hold that statutory tribunals involving adjudicatory functions must not sit singly but must sit in benches of two and that at least one of the two members must be a judicial member. Hence, unless the aforesaid judgment of the Apex Court in L. Chandra Kumar v. Union of India is reconsidered, the Committee refrains from suggesting corresponding changes in clause 3 (2) (b) read with clause 19, though it has been tempted to do so.[Para 11.20(D)]
45. There is merit in the suggestion that clause 3 (4) of the Lokpal Bill 2011 be further amended to clarify that a person shall not be eligible to become Chairperson or Member of Lokpal if:
(a) He/ she is a person convicted of any offence involving moral turpitude;
(b) He/ she is a person less than 45 years of age, on date of assuming office as Chairperson or Member of Lokpal;
(c) He/ she has been in the service of any Central or State Government or any entity owned or controlled by the Central or State Government and has vacated office either by way of resignation, removal or retirement within the period of 12 months prior to the date of appointment as Chairperson or Member of Lokpal.[Para 11.20(E)]
46. In clause 9 (2), the existing provision should be retained but it should be added at the end of that clause, for the purpose of clarification, that no one shall be eligible for re-appointment as Chairperson or Member of the Lokpal if he has already enjoyed a term of five years.[Para 11.20(F)]
47. The Committee has already recommended appropriate representation on the Search Committee, to certain sections of society who have been historically marginalized. The Committee also believes that although the institution of Lokpal is a relatively small body of nine members and specific reservation cannot and ought not to be provided in the Lokpal institution itself, there should be a provision added after clause 4 (5) to the effect that the Selection Committee and the Search Committee shall make every endeavour to reflect, on the Lokpal institution, the diversity of India by including the representation, as far as practicable, of historically marginalized sections of the society like SCs/ STs, OBCs, minorities and women. [Para 11.20(G)]
48. As regards clause 51 of the Lokpal Bill, 2011, the Committee recommends that the intent behind the clause be made clear by way of an Explanation to be added to the effect that the clause is not intended to provide any general exemption and that “good faith” referred to in clause 52 shall have the same meaning as provided in section 52 of the IPC.[Para 11.20(H)]
The Trinity of the Lokpal, CBI and CVC: In Search of an Equilibrium
49. (A) Whatever is stated hereinafter in these recommendations is obviously applicable only to Lokpal and Lokayukta covered personnel and offences/ misconduct, as already delineated in this Report earlier, inter alia, in Chapter 8 and elsewhere.
(B) For those outside (A) above, the existing law, except to the extent changed, would continue to apply. (Para 12.32]
50. This Chapter, in the opinion of the Committee, raises an important issue of the quality of both investigation and prosecution; the correct balance and an apposite equilibrium of 3 entities (viz. Lokpal, CBI and CVC) after creation of the new entity called Lokpal; harmonious functioning and real life operational efficacy of procedural and substantive safeguards; the correct balance between initiation of complaint, its preliminary screening/ inquiry, its further
investigation, prosecution, adjudication and punishment; and the correct harmonization of diverse provisions of law arising from the Delhi Special Police Establishment Act, the CVC Act, the proposed Lokpal Act, the IPC, CrPC and the Prevention of Corruption Act. It is, therefore, a somewhat delicate and technical task. [Para 12.33]
51. The stages of criminal prosecution of the Lokpal and Lokayukta covered persons and officers can be divided broadly into 5 stages, viz. (a) The stage of complaint, whether by a complainant or suo motu, (b) the preliminary screening of such a complaint, (c) the full investigation of the complaint and the report in that respect, (d) prosecution, if any, on the basis of the investigation and (e) adjudication, including punishment, if any.[Para 12.34]
52. The Committee recommends that the complaint should be allowed to be made either by any complainant or initiated suo motu by the Lokpal. Since, presently, the CBI also has full powers of suo motu initiation of investigation, a power which is frequently exercised, it is felt that that the same power of suo motu proceedings should also be preserved for both the CBI and the Lokpal, subject, however, to overall supervisory jurisdiction of the Lokpal over the CBI, including simultaneous intimation and continued disclosure of progress of any inquiry or investigation by the CBI to the Lokpal, subject to what has been elaborated in the next paragraph.[Para 12.35]
53. Once the complaint, through any party or suo motu has arisen, it must be subject to a careful and comprehensive preliminary screening to rule out false, frivolous and vexatious complaints. This power of preliminary inquiry must necessarily vest in the Lokpal. However, in this respect, the recommendations of the Committee in para 12.36(I) should be read with this para. This is largely covered in clause 23 (1) of the Lokpal Bill, 2011. However, in this respect, the Lokpal would have to be provided, at the inception, with a sufficiently large internal inquiry machinery. The Lokpal Bill, 2011 has an existing set of provisions (Clauses 13 and 14 in Chapter III) which refers to a full-fledged investigation wing. In view of the structure proposed in this Chapter, there need not be such an investigation wing but an efficacious inquiry division for holding the preliminary inquiry in respect of the complaint at the threshold. Preliminary inquiry by the Lokpal also semantically distinguishes itself from the actual investigation by the CBI after it is referred by the Lokpal to the CBI. The pattern for provision of such an inquiry wing may be similar to the existing structure as provided in Chapter III of the Lokpal Bill 2011 but with suitable changes made, mutatis mutandis, and possible merger of the provisions of Chapter VII with Chapter III.[Para 12.36]
54. The Committee is concerned at the overlap of terminology used and procedures proposed, between preliminary inquiry by the Lokpal as opposed to investigation by the investigating agency, presently provided in Clause 23 of the Lokpal Bill. The Committee, therefore, recommends:
(a) that only two terms be used to demarcate and differentiate between the preliminary inquiry to be conducted by the Lokpal, inter-alia, under Chapters VI and VII read with Clause 2(1)(e) as opposed to an investigation by the investigating agency which has been proposed to be the CBI in the present report. Appropriate changes should make it clear that the investigation (by the CBI as recommended in this report), shall have the same meaning as provided in Clause 2 (h) of the Cr.P.C whereas the terms “inquiry” or “preliminary investigation” should be eschewed and the only two terms used should be “preliminary inquiry” ( by the Lokpal) on the one hand & “investigation” (by the CBI), on the other.
(b) the term preliminary inquiry should be used instead of the term inquiry in clause 2(1)(e) and it should be clarified therein that it refers to preliminary inquiry done by the Lokpal in terms of Chapters VI and VII of the Lokpal Bill, 2011 and does not mean or refer to the inquiry mentioned in Section 2(g) of the Cr.P.C.
(c) the term “investigation” alone should be used while eschewing terms like “preliminary investigation” and a similar definitional provision may be inserted after Clause 2(1)(e) to state that the term investigation shall have the same meaning as defined in Clause 2(h) of the Cr.P.C.
(d) Similar changes would have to be made in all other clauses in the Lokpal Bill, 2011, one example of which includes Clause-14.[Para 12.36(A)]
55. There are several parts of Clause 23 of the 2011 Bill, including Clauses 23(4), 23(5), 23(6), 23(9) and 23(11) which require an opportunity of being heard to be given to the public servant during the course of the preliminary inquiry i.e. the threshold proceedings before the Lokpal in the sense discussed above. After deep consideration, the Committee concludes that it is unknown to criminal law to provide for hearing to the accused at the stage of preliminary inquiry by the appropriate authority i.e. Lokpal or Lokayukta in this case. Secondly, the preliminary inquiry is the stage of verification of basic facts regarding the complaint, the process of filtering out false, frivolous, fictitious and vexatious complaints and the general process of seeing that there is sufficient material to indicate the commission of cognizable offences to justify investigation by the appropriate investigating agency. If the material available in the complaint at the stage of its verification through the preliminary inquiry is fully disclosed to the accused, a large part of the entire preliminary inquiry, later investigation, prosecution and so on, may stand frustrated or irreversibly prejudiced at the threshold. Thirdly, and most importantly, the preliminary inquiry is being provided as a threshold filter in favour of the accused and is being entrusted to an extremely high authority like the Lokpal, created after a rigorous selection procedure. Other agencies like the CBI also presently conduct preliminary inquiries but do not hear or afford natural justice to the accused during that process. Consequently the Committee recommends that all references in Clause 23 or elsewhere in the Lokpal Bill, 2011 to hearing of the accused at the preliminary inquiry stage should be deleted.[Para 12.36(B)]
56. Since the Committee has recommended abolition of the personal hearing process before the Lokpal during the preliminary inquiry, the Committee deems it fit and proper to provide for the additional safeguard that the decision of the Lokpal at the conclusion of the preliminary inquiry to refer the matter further for investigation to the CBI, shall be taken by a Bench of the Lokpal consisting of not less than 3 Members which shall decide the issue regarding reference to investigation, by a majority out of these three.[Para 12.36.(BB)]
57. Naturally it should also be made clear that the accused is entitled to a full hearing before charges are framed. Some stylistic additions like referring to the charge sheet “if any” (since there may or may not be a chargesheet) may also be added to Clause 23(6). Consequently, Clauses like 23(7) and other similar clauses contemplating proceedings open to public hearing must also be deleted. [Para 12.36(C)]
58. Clause 23(8) would have to be suitably modified to provide that the appropriate investigation period for the appropriate investigating agency i.e. CBI in the present case, should normally be within six months with only one extension of a further six months, for special reasons. Reference in Clause 23(8) to “inquiry” creates highly avoidable confusion and it should be specified that the meanings assigned to inquire and investigate should be as explained above.[Para 12.36(D)]
59. The Committee also believes that there may be several exigencies during the course of both preliminary inquiry and investigation which may lead to a violation of the 30 days or six months periods respectively specified in Clause 27(2) and 23(8). The Committee believes that it cannot be the intention of the law that where acts and omissions by the accused create an inordinate delay in the preliminary inquiry and / or other factors arise which are entirely beyond the control of the Lokpal, the accused should get the benefit or that the criminal trial should terminate. For that purpose it is necessary to insert a separate and distinct provision which states that Clauses 23(2), 23(8) or other similar time limit clauses elsewhere in the Lokpal Bill, 2011, shall not automatically give any benefit or undue advantage to the accused and shall not automatically thwart or terminate the trial. [Para 12.36(E)]
60. Clause 23(10) also needs to be modified. Presently, it states in general terms the discretion to hold or not to hold preliminary inquiry by the Lokpal for reasons to be recorded in writing. However, this may lead to allegations of pick and choose and of arbitrariness and selectivity. The Committee believes that Clause 23(10) should be amended to provide for only one definition viz., that preliminary inquiry may be dispensed with only in trap cases and must be held in all other cases. Even under the present established practice, the CBI dispenses with preliminary inquiry only in a trap case for the simple reason that the context of the trap case itself constitutes preliminary verification of the offence and no further preliminary inquiry is necessary. Indeed, for the trap cases, Section 6 A (ii) of the Delhi Special Police Establishment Act, 1946 also dispenses with the provision of preliminary inquiries. For all cases other than the trap cases, the preliminary inquiry by the Lokpal must be a non dispensable necessity.[Para 12.36(F)]
61. Clause 23(11) also needs to be modified / deleted since, in this Report, it is proposed that it is the CBI which conducts the investigation which covers and includes the process of filing the charge sheet and closure report. [Para 12.36(G)]
62. Similarly Clause 23 (12) (b) would have to be deleted, in view of the conclusion hereinabove regarding the absence of any need to provide natural justice to the accused at the stage of preliminary inquiry. Clause 23(14) is also unusually widely worded. It does not indicate as to whom the Lokpal withhold records from. Consequently that cannot be a general blanket power given to the Lokpal to withhold records from the accused or from the investigating agency. Indeed, that would be unfair, illegal and unconstitutional since it would permit selectivity as also suppress relevant information. The clause, therefore, needs to be amended.[Para 12.36(H)]
63. The case of the Lokpal initiating action suo motu, requires separate comment. In a sense, the preliminary inquiry in the case of a Lokpal suo motu action becomes superfluous since the same body ( i.e. Lokpal) which initiates the complaint, is supposed to do a preliminary inquiry. This may, however, not be as anomalous as it sounds since even under the present structure, the CBI, or indeed the local police, does both activities ie suo motu action as also preliminary screening/ inquiry. The Committee was tempted to provide for another body to do preliminary inquiry in cases where the Lokpal initiates suo motu action, but in fact no such body exists and it would create great multiplicity and logistical difficulty in creating and managing so many bodies. Hence the Committee concludes that in cases of suo motu action by Lokpal, a specific provision must provide that that part of the Lokpal which initiates the suo motu proposal, should be scrupulously kept insulated from any part of the preliminary inquiry process following upon such suo motu initiation. It must be further provided that the preliminary inquiry in cases of suo motu initiation must be done by a Lokpal Bench of not less than five Members and these should be unconnected with those who do the suo motu initiation.[Para 12.36(I)]
64. These recommendations also prevent the Lokpal from becoming a single institution fusing unto itself the functions of complainant, preliminary inquirer, full investigator and prosecutor. It increases objectivity and impartiality in the criminal investigative process and precludes the charge of creating an unmanageable behemoth like Lokpal, while diminishing the possibility of abuse of power by the Lokpal itself.[Para 12.37]
65. These recommendations also have the following advantages:
(i) The CBI’s apprehension, not entirely baseless, that it would become a Hamlet without a Prince of Denmark if its Anti-Corruption Wing was hived off to the Lokpal, would be taken care of.
(ii) It would be unnecessary to make CBI or CVC a Member of the Lokpal body itself.
(iii) The CBI would not be subordinate to the Lokpal nor its espirit de corps be adversely affected; it would only be subject to general superintendence of Lokpal. It must be kept in mind that the CBI is an over 60 year old body, which has developed a certain morale and espirit de corps, a particular culture and set of practices, which should be strengthened and improved, rather than merely subsumed or submerged within a new or nascent institution, which is yet to take root. Equally, the CBI, while enhancing its autonomy and independence, cannot be left on auto pilot.
(iv) The CVC would retain a large part of its disciplinary and functional role for non Lokpal personnel and regarding misconduct while not being subordinate to the Lokpal. However, for Lokpal covered personnel and issues, including the role of the CBI, the CVC would have no role.
(v) Mutatis mutandis statutory changes in the Lokpal Bill, the CVC and the CBI Acts and in related legislation, is accordingly recommended. [Para 12.38]
66. After the Lokpal has cleared the stage for further investigation, the matter should proceed to the CBI. This stage of the investigation must operate with the following specific enumerated statutory principles and provisions:
(A) On the merits of the investigation in any case, the CBI shall not be answerable or liable to be monitored either by the Administrative Ministry or by the Lokpal. This is also fully consistent with the established jurisprudence on the subject which makes it clear that the merits of the criminal investigation cannot be gone into or dealt with even by the superior courts. However, since in practise it has been observed in the breach, it needs to be unequivocally reiterated as a statutory provision, in the proposed Lokpal Act, a first in India.
(B) The CBI shall, however, continue to be subject to the general supervisory superintendence of the Lokpal. This shall be done by adding a provision as exists today in the CVC Act which shall now apply to the Lokpal in respect of the CBI. Consequently, the whole of the Section 8 (1) (not Section 8 (2) ) of the CVC Act should be included in the Lokpal Bill to provide for the superintendence power of the Lokpal over the CBI.[Para 12.39]
67. Correspondingly, reference in Section 4 of the Delhi Special Police Establishment Act to the CVC would have to be altered to refer to the Lokpal. [Para 12.40]
68. At this stage, the powers of the CBI would further be strengthened and enhanced by clarifying explicitly in the Lokpal Bill that all types of prior sanctions/terms or authorizations, by whatever name called, shall not be applicable to Lokpal covered persons or prosecutions. Consequently, the provisions of Section 6 (A) of the Delhi Special Police Establishment Act, Section 19 of the Prevention of Corruption Act and Section 197 of the IPC or any other provision of the law, wherever applicable, fully or partially, will stand repealed and rendered inoperative in respect of Lokpal and Lokayukta prosecutions, another first in India. Clause 27 of the Lokpal Bill, 2011 is largely consistent with this but the Committee recommends that it should further clarify that Section 6 A of the DSPE Act shall also not apply in any manner to proceedings under the proposed Act. The sanction requirement, originating as a salutary safeguard against witch hunting has, over the years, as applied by the bureaucracy itself, degenerated into a refuge for the guilty, engendering either endless delay or obstructing all meaningful action. Moreover, the strong filtering mechanism at the stage of preliminary inquiry proposed in respect of the Lokpal, is a more than adequate safeguard, substituting effectively for the sanction requirement. Elsewhere, this Report recommends that all sanction requirements should be eliminated even in respect of non Lokpal covered personnel. [Para 12.41]
69. The previous two paragraphs if implemented, would achieve genuine and declared statutory independence of investigation for the first time for the CBI.[Para 12.42]
70. The main investigation, discussed in the previous few paragraphs, to be conducted by the CBI, necessarily means the stage from which it is handed over to the CBI by the Lokpal, till the stage that the CBI files either a chargesheet or a closure report under Section 173 of the CrPC. However, one caveat needs to be added at this stage. The CBI’s chargesheet or closure report must be filed after the approval by the Lokpal and, if necessary, suitable changes may have to be made in this regard to Section 173 Cr PC and other related provisions.[Para 12.43]
71. The aforesaid independence of the CBI is reasonable and harmonizes well with the supervisory superintendence of the Lokpal in the proposed Lokpal Bill, which is now exercised by CVC under Section 8 (1) of the CVC Act. The Committee recommends the above provision, suitably adapted to be applicable in the relationship between the Lokpal and the CBI. [Para 12.44]
72. The next stage of the criminal process would go back to the Lokpal with full powers of prosecution on the basis of the investigation by the CBI. The following points in this respect are noteworthy:
Clause 15 in Chapter IV of the Lokpal Bill, 2011 already contains adequate provisions in this regard and they can, with some modifications, be retained and applied.
The Committee’s recommendations create, again for the first time, a fair demarcation between independent investigation and independent
prosecution by two distinct bodies, which would considerably enhance impartiality, objectivity and the quality of the entire criminal process.
It creates, for the first time in India, an independent prosecution wing, under the general control and superintendence of the Lokpal, which, hopefully will eventually develop into a premium, independent autonomous Directorate of Public Prosecution with an independent prosecution service (under the Lokpal institution). The Committee also believes that this structure would not in any manner diminish or dilute the cooperative and harmonious interface between the investigation and prosecution processes since the former, though conducted by the CBI, comes under the supervisory jurisdiction of the Lokpal.[Para 12.45]
73. The next stage is that of adjudication and punishment, if any, which shall, as before, be done by a special Judge. The Committee considers that it would be desirable to use the nomenclature of ‘Lokpal Judge’ ( or Lokayukta Judge in respect of States) under the new dispensation. However, this is largely a matter of nomenclature and existing provisions in the Lokpal Bill, 2011 in Chapter IX are adequate, though they need to be applied, with modifications. [Para 12.46]
74. The aforesaid integrates all the stages of a criminal prosecution for an offence of corruption but still leaves open the issue of departmental proceedings in respect of the same accused.[Para 12.47]
75. The Committee agrees that for the Lokpal covered personnel and issues, it would be counter-productive, superfluous and unnecessary to have the CVC to play any role in departmental proceedings. Such a role would be needlessly duplicative and superfluous. For such matters, the Lokpal should be largely empowered to do all those things which the CVC presently does, but with some significant changes, elaborated below.[Para 12.48]
76. Clauses 28 and 29 of the Lokpal Bill are adequate in this regard but the following changes are recommended:
(i) The Lokpal or Lokayukta would be the authority to recommend disciplinary proceedings for all Lokpal or Lokayukta covered persons.
(ii) The CVC would exercise jurisdiction for all non Lokpal covered persons in respect of disciplinary proceedings.
(iii) The CBI would similarly continue to exercise its existing powers under the CVC’s superintendence for all non Lokpal personnel and proceedings.
(iv) Departmental action must, as the law today stands, comply with the over arching mandate of Article 311 of the Indian Constitution. Dissatisfaction or objection to the practical operation of Article 311, fully understandable and indeed justifiable, does not permit or impel us to ignore the existence of Article 311, until altered. If there is consensus outside the Committee on amending Article 311, it must be amended as elaborated and recommended by the Committee in paragraph 12.49. However, absent such a consensus, the passage of the Lokpal Bill need not be held up on that account and hence the present report makes recommendations on the basis of the continuance of Article 311. If, however, it is amended as per paragraph 12.49, the proposed Lokpal Act can easily be modified to reflect such changes.
(v) It may also be remembered that the Lokpal itself does not conduct the departmental proceedings. For the law to provide for Lokpal to conduct the entire departmental proceedings itself, would be to put a humungous and unworkable burden on the institution.
(vi) Therefore, the power to take departmental action whether in the case of bureaucrats or in the case of Ministers as provided in Clauses 28 and 29 of the Lokpal Bill 2011, are largely appropriate.
(vii) The Committee is informed that suspension of a delinquent officer during his criminal prosecution is virtually automatic in practice. However, the Committee feels the need to emphasize that a specific provision be added in Chapter VII making it clear that once any bureaucrat (viz. group A or group B officer) as covered in the proposed Lokpal Bill is under investigation and the Lokpal makes a recommendation that such a person be suspended, such suspension should mandatorily be carried out unless, for reasons to be recorded in writing by a majority out of a group of 3 persons not below the rank of Ministers of State belonging to the Ministries of Home, Personnel and the relevant administrative Ministry of the delinquent officer, opine to the contrary. Such suspension on Lokpal recommendation does not violate Article 311 in any manner. Refusal by the aforesaid Committee of three provides a check and balance qua possibly unreasonable Lokpal recommendations. The reference is to three high functionaries of three Ministries and not to the Administrative Ministry alone since it is frequently found in practise that the Administrative Ministry’s responses alone may seek to preserve the status quo on account of vested interests arising from the presence of the delinquent officer in that Administrative Ministry.
(viii) There cannot be a counterpart suspension provision in respect of MPs or Ministers or the like, but an explicit clause may be added to the existing Clause 29 that the Presiding Officer of the relevant House in the case of MPs and Prime Minister in the case of a member of the Council of Ministers shall record a note in writing indicating the action being taken in regard to the Lokpal’s recommendations or the reasons for not taking such action.
(ix) Wherever otherwise applicable, in respect of the details of the departmental inquiry, the provisions of Article 311 would, unless altered and subject to Paras D above and 12.49 below, continue to apply.[Para 12.49]
77. The Committee strongly pleads and recommends that the provisions of Article 311 require a close and careful relook to ensure that reasonable protection is given to bureaucrats for the independent and fair discharge of their functions but that the enormous paraphernalia of procedural rules and regulations which have become a major obstacle in the taking of genuine and legitimate departmental action against delinquent officers, be eliminated. The Committee notes with concern and with growing apprehension that serious and high level / big ticket corruption has increased exponentially since Independence at all levels in the Lokpal proposed categories of personnel. In particular, bureaucratic corruption has been relatively ignored or underplayed in the context of theexcessive media and civil society focus on political corruption, coupled with the doctrine of civil service anonymity, which this country imported from our former colonial masters. Hence, the substantial modification of Article 311 or, indeed, its replacement by a much lesser statutory (not constitutional counterpart) should be taken up and implemented at the earliest. It may be added that what requires to be looked into is not the mere text of Article 311 but the context which has grown around it, through an undesirably large number of statutory and non-statutory rules, procedures and regulations coupled with huge common law jurisprudence over the last 6 decades. It is universally believed that the aforesaid has, in practice, converted Article 311, from a reasonable and salutary safeguard to a haven for those indulging in mal-administration and/ corruption with no fear of consequences and the certainty of endless delay. The fact that Article 311 had been given constitutional and not mere statutory status is also responsible for its largely unchanged character over the last six plus decades.[Para 12.50]
78. Though not strictly within the purview of the Lokpal Bill 2011 itself, the Committee also recommends that CVC’s advice in respect of departmental action to be taken by the relevant department in case of non-Lokpal covered personnel must, by a suitable amendment to the CVC Act, be made binding to the extent that, unless for reasons to be recorded by a majority out of the same joint group as aforesaid, comprising 3 persons not below the rank of Ministers of State belonging respectively to the Ministries of Home Affairs, Personnel and the Administrative Ministry to which the delinquent officer belongs, states that CVC advice be not followed, such CVC advice shall be binding. [Para 12.51]
79. The Committee has deliberated long and hard on whether it can or should go to the extent of suggesting changes in the selection procedure of the CBI chief. Presently, the CBI chief is appointed by the Government on the recommendation of a Committee consisting of the CVC as Chairperson, Vigilance Commissioner, Secretary, Government of India in the Ministry of Home Affairs and Secretary of the Administrative Ministry (in this case the Ministry of Personnel) [see Section 4A of the Delhi Special Police Establishment Act, 1946]. Section 8 (2) of the 1946 Act further provides for a mandatory input in the selection of a new Director to be made by the outgoing Director and also enjoins upon the Committee, in Section 8 (3), to make recommendations for a panel of officers on the basis of seniority, integrity and experience in the investigation of anticorruption cases, necessarily belonging to the Indian Police Services. [Para 12.52]
80. Interestingly, Section 4 C of the same 1946 Act provides for the same Committee to make recommendations for all appointments as also extension or curtailment of tenure of all officers above the level of Superintendent of Police in the CBI. [Para 12.53]
81. It is thus clear that it is not correct to suggest that the Central Government has absolute discretion in appointing the CBI Director. After the Vineet Narain vs. Union of India judgment* by the Apex Court, significant changes were brought into the Delhi Special Police Establishment Act, 1946. In 2003 (by Act 45 of 2003) providing for the aforesaid independent and autonomous regime for selection and appointment of CBI Director. The Central Vigilance Commissioner who heads the selection and recommendation process is itself a high statutory authority under a separate enactment called the Central Vigilance Commission Act of 2003 which, in turn in Section 4, obliges the Government to appoint the CVC on the basis of a recommendation of a high powered Committee comprising the Prime Minster, the Home Minister and the leader of opposition in the Lok Sabha. It is, therefore, erroneous to brush aside the existing system as merely involving absolute power/discretion to select Government favourites as CBI Director. [Para 12.54]
82. Furthermore, the Committee believes that it would neither be proper nor desirable for the Committee to go into and suggest fundamental statutory alterations to the procedure for selection and appointment of CBI Director, which appears, nowhere, directly or indirectly, to be a subject referred for the consideration of this Committee. Collateral recommendations of this nature by a side wind should, in the opinion of this Committee, be avoided, especially since * 1996(2) SCC 199. significant statutory changes have been brought in with respect to theappointment of the CBI Director less than 8 years ago. [Para 12.55]
Constitutional Status: If, How and How Much
83. The Committee, therefore, recommends:-
(a) The institution of Lokpal must be given constitutional status by inserting into the Constitution by way of constitutional amendment certain basic principles about the Lokpal and leaving the details in the new proposed statute on which this Committee is opining.
(b) One practical, reasonable and legally valid model would be for the
Government to consider the model and set of provisions asked for by the Committee and presented in the evidence to the Committee as a draft constitutional amendment by two former Chief Justices of India. That draft is enclosed herewith as Annexure ‘F’ and is self-explanatory.
(c) This constitutional amendment does not require ratification by not less than half of the State Legislatures since it does not seek to make any change in any of the provisions listed in the second proviso to Article 368 (2) of the Indian Constitution.
(d) The constitutional amendment should, as reflected in the enclosed Annexure ‘F’ be a set of basic principles for the Lokpal as also provide for the basic set up of the Lokayuktas. Both these provisions, proposed in the enclosed draft, propose Part XVA and Articles 329(C) and 329(D), as enabling, empowering and permissive provisions and authorize and empower the appropriate legislature to make proper laws, mutatis mutandis, for Lokpal at the Centre and for Lokayuktas at the State.
(e) Such a constitutional status would not only considerably enhance the stature, legal and moral authority of the Lokpal institution but would make interference and tinkering in these basic principles not subject to the vicissitudes of ordinary or transient majorities. Over a period of time, it is likely that these principles would develop into a set of immutable principles and, possibly, even become part of basic structure of the Constitution rendering the existence of the Lokpal and its basic features un-amendable even by a constitutional amendment.
(f) Apprehensions regarding delay are misplaced. The constitutional amendment bill would be much shorter than the statutory bill for the new proposed Lokpal and can be passed on the same day and at the same timeas the latter, though by a different majority. It is inconceivable that while parties are in favour of the institution of Lokpal in principle, as a statutory body, parties would not agree with equal alacrity for the passage of a constitutional amendment bill.
(g) The suggestion that the entire statutory bill should be transposed as a constitutional amendment into the Constitution is untenable and impracticable. That would eliminate flexibility and would require a constitutional amendment for the smallest future change. Moreover, the Constitution does not and is not intended to provide for nitty gritty operational details. It should be and is intended to be a declaration of general and basic principles which, in turn, enable and empower formal legislation, which in turn would take care of the details.
(h) An easy or casual repeal of the entire Lokpal scheme would not be possible once it is constitutionally entrenched.
(i) Similarly, there would be no option for the federal or State Legislatures not to have a Lokpal or a Lokayukta at all since the constitutional mandate would be to the contrary.
(j) Contextually, the issues and some of the suggestions in this Chapter may overlap with and should, therefore, be read in conjunction with Chapter 7 of this report. Though the Committee has already opined in Chapter 4 of this Report here that the issues of grievance redressal should be dealt with in a separate legislation, the Committee hereby also strongly recommends that there should be a similar declaration either in the same Chapter of the Lokpal or in a separate Chapter proposed to be added in the Indian Constitution, giving the same constitutional status to the citizens grievances and redressal machinery.
(k) This recommendation also reflects the genuine and deep concern of this Committee about the need, urgency, status and importance of a citizen’s charter/grievance machinery and the Committee believes that the giving of the aforesaid constitutional status to this machinery would go a long way in enhancing its efficacy and in providing a healing touch to the common man.
(l) Furthermore, the Committee believes that this recommendation herein is also fully consistent with the letter and spirit of para 1.8 above viz. The conclusions of the Minister of Finance in the Lower House recorded in para 1.8 above. [Para 13.12]
The Jurisdictional Limits of Lokpal: Private NGOs, Corporates and Media
84. There is no doubt that corruption is neither the exclusive preserve nor the special privilege nor the unique entitlement of only the political or bureaucratic classes. Nor can anyone justify exclusionary holy cows, supposedly immunized, exempted or put outside the purview of a new and vigorous anti-corruption monitoring, investigation and prosecution regime as the proposed new Lokpal Bill seeks to create. If corruption is rampant in a country like India, it permeates and pervades every nook and cranny of society and is certainly not restricted to the political or bureaucratic classes. Indeed, while no specific statistical data are available, it may not be at all inconceivable that, in quantum terms, the degree of corruption in the non-political/non-bureaucratic private sector, in the aggregate, is far higher than in the realm of political and bureaucratic classes alone. Therefore, in principle, non-application of the proposed Lokpal Bill to all such classes does not appear to be justifiable.[Para 14.22]
85. In this connection, the very recent UK Bribery Act, 2010, is both interesting and instructive. Drafted in a completely non-legalistic manner, format and language, this Act seeks to criminalize corruption everywhere and anywhere, i.e. in the public and private sectors in UK, in Governmental and non-Governmental sectors, by UK citizens abroad, by non-UK citizens acting in UK and in the entire gamut of private and individual transactions in addition to covering dealings in the private sector, intra-private sector, intra-public sector, in Government and private interface and in every other nook and cranny of society.[Para 14.23]
86. Despite the above and despite the simplicity and attractiveness of an all inclusive approach, the latter must yield to exigencies of logistics, operational efficacy and pragmatism. Since this is the nation’s first experiment with a central Lokpal institution, it would amount to starry-eyed idealism to recommend the blanket inclusion of every segment of society under the jurisdiction of an omnipotent and omniscient Lokpal. Such comprehensive inclusion is entirely understandable and may be logically more justifiable in principle, but, in the final opinion of the Committee, must await several years of evolution of the Lokpal institution and a corpus of experiential and practical lessons as also the wisdom of a future generation of Parliamentarians.[Para 14.24]
87. As far as the proposed dispensation is concerned, the only available dividing and demarcating line between the complete inclusion and partial exclusion of entities from the jurisdiction of the Lokpal would have to be some test of Government ownership and/or control and/or size of the entity concerned. In this regard, clauses 17 (1) (f) and (g) of the Lokpal Bill, 2011 are relevant. Clause 17 (1) (f) applies the Lokpal jurisdiction mainly to office-bearers of every society, A.o.P. or trust, registered or not, but wholly or partially financed or aided by the Government, subject to being above some specified annual income minima. Clause 17 (1) (g), similarly, applies the Lokpal to office-bearers of every society, A.o.P. or trust, receiving donations from the public, again subject to an annual income minima to be specified by the Central Government.[Para 14.25]
88. After deep consideration, the Committee believes and recommends that these clauses should be merged and expanded to provide for the following coverage/jurisdiction of the Lokpal:
(a) The Lokpal jurisdiction should apply to each and every institution/entity, by whatever name called, owned or controlled by the Central Government, subject, however, to an exclusionary minima, where the ownership or control of the Central Government de minims. Such minima would have to be specified and the power of such specification should be given to the Central Government by notification;
(b) Additionally, all entities/institutions, by whatever name called, receiving donations from the public above a certain minima, liable to be specified by the Central Government should be included. In addition, as also all entities/institutions receiving donations from foreign sources in the terms and context of the Foreign Contribution Regulation Act (FCRA) in excessof Rs.10 lakh per year, should be covered, whether or not, controlled by the Government. This is largely as per existing clause 17 (1) (g), except for the addition of the foreign donation recipient facet;
(c) It should be clarified that this coverage shall apply, as also stated above, to every entity and institution, by whatever name called, be it corporate, society, trust, A.o.P., partnership, sole proprietorship, LLP or any other, registered or not. It should also be made clear that the approach is functional or ownership based or size based and not based on nomenclature;
(d) It is thus clear that corporates, media or NGOs should and would be covered only to the above extent and not otherwise.[Para 14.25.A]
89. Despite the foregoing elaborations and ‘lament’ regarding exclusion of large slices of society from the Lokpal regime, it must not be forgotten that all persons, whether private, individual, and totally non-Governmental, are already necessarily covered as abettors, co-conspirators, inciters and givers or recipients or bribes in terms of clause 17 (3) of the Lokpal Bill, 2011. It may, however, be further clarified suitably in inclusive and not exhaustive terms in clause 17 (3)that the phrase “if such person is associated with the allegation of corruption”, should include abettors, bribe-givers, bribe-takers, conspirators and all other persons, directly or indirectly, involved in the act or omission relating to corruption within which all other persons and entities in clause 17 are subsumed. The word “associated” presently used is too general and vague.[Para 14.26]
90. The Committee further recommends that clause 17 (3) should be explicitly clarified to the effect that the abettor, conspirator or person associated, in any manner, directly or indirectly, with the corruption allegation, shall not only be included but be fully liable to investigation, prosecution and punishment and that the proviso to clause 17 (3) shall be limited only to proposed action to be taken ‘in case of a person serving in the affairs of a State’ and not qua anyone else.[Para 14.26.A]
Support Structure for the Lokpal: Whistle Blowers, Phone Tappers and Legal Aid/ Assistance Issues
91. As regards the whistleblower issue, this Committee has made a detailed recommendation on the subject on August 10, 2011 in respect of the Bill referred to it. That Bill and the Committee’s recommendation are under the active decision making process of the Government of India for eventual translation into law.[Para 15.10]
92. The Committee recommends that the Whistleblowers Bill (Bill No. 97 of 2010) referred to the Committee, with the changes already recommended by the Committee in respect of that Bill (in the Committee’s report dated August 10, 2011), be implemented into law simultaneously and concurrently with the Lokpal Bill. In that case, only one provision needs to be inserted in the Lokpal Bill to the effect that safeguards and machinery provided elaborately in the proposed Whistleblowers Bill, as opined upon by the Committee, would be applicable, mutatis mutandis to the Lokpal Bill. In particular, the Committee
notes that clauses 10, 11, 12 and 13 of the aforesaid Whistleblowers Bill, provide a fairly comprehensive fasciculus of provisions providing safeguards against victimization, protection of witnesses and other persons, protection of identity of complainant and power to pass interim orders. The Whistleblowers Bill also sets up a competent authority and provides for several other related provisions to make the functioning of that authority efficacious and to enhance the efficiency, potency and vigour of the safeguards intended to be provided to a whistleblower. The proposed provision in the Lokpal Bill should act as a cross referencing, breach of which should activate the related/ applicable provisions of the Whistleblower Bill and render them applicable to all Lokpal proceedings, as if set out in the Lokpal Bill, 2011.[Para 15.11]
93. Naturally, one of the main adaptations of the Whistleblowers Bill for Lokpal proceedings would be that the competent authority in respect of Lokpal covered persons and offences would be the Lokpal and references in the Whistleblowers Bill to CVC or other entities would be rendered inoperative for purposes of Lokpal personnel and officers.[Para 15.12]
94. If, however, the aforesaid Whistleblower Bill, along with the recommendations of `this Committee in that regard, are not enacted into law by the Government of India, co-terminously and simultaneously with the Lokpal Bill, then this Committee recommends the creation of some safeguards, in substance and essence, by the addition of a whole new chapter and certain provisions in the proposed Lokpal Bill. However, those provisions in the Lokpal Bill would be largely an adaptation of the same provisions of the Whistleblowers Bill, especially clauses 10 to 13 of the Whistleblowers Bill, while, as explained above, making the Lokpal the competent authority for such whistleblower issues.[Para 15.13]
95. As regards phone tapping, the Committee emphasizes and underlines the basic reality that phone tapping by regulatory and policing agencies has been prevalent in India for several years and the rules and regulations in that regard have undergone periodic refinement and amendment. Currently the regime of phone tapping is governed by Indian Telegraph Act and Rules read with the judgments of the Supreme Court inter alia in People Union for Civil Liberties Vs. Union of India (1997) 1 SCC 301. The Committee believes that there is no reason, sufficiently strong, to suggest that this substantive law should be altered in respect of Lokpal proceedings.[Para 15.14]
96. Phone tapping has been resorted to, inter alia, by agencies as diverse as CBI, Enforcement Directorate, Directorate of Revenue Intelligence and others, under the aforesaid regime of the Act., Rules and the Supreme Court mandated principles. In all such cases, the Committee is not aware of any situation where any of these agencies are entitled to suo motu, on their own, without separate authorization, and in secrecy, initiate or continue phone tapping. There is, therefore, no reason as to why the proposed Lokpal institution should also not be subjected to the same regime and mechanism. To provide for inherent and separate power in the Lokpal institution in this regard, would also create an excessive and undesirable concentration of powers, would frequently involve a conflict of interest between preliminary inquiry, investigation and prosecution and would disturb the equilibrium of all investigative agencies for the past several years with established practices in respect of phone tapping issues.Indeed, the Committee notes that in other parts of this Report (Chapter 12), the CBI is the principal investigating agency and, therefore, its powers of phone tapping must continue as they exist today. [Para 15.15]
97. As regards legal aid/ assistance, the Committee concludes that clause 56 as framed does not intend to and should not be read to be a mandate for provision of automatic legal aid for every accused in a Lokpal proceeding. Clause 56, by any fair reading, and in the opinion of this Committee, is only intended to provide legal assistance by way of legal representation to the accused in any case before the Lokpal eg:- a preliminary inquiry. Firstly, the Committee does not read this to mean automatic monetary or fiscal assistance or by way of lawyers’
fees for the accused. Secondly, the Committee believes that this was intended to and recommended so that it should be explicitly clarified that it permits the use of, or appearance by a legal practitioner, where the accused asks for one in Lokpal proceedings eg:- a preliminary inquiry. In any event, elsewhere in this Report we have recommended deletion of the concept of hearing an accused during preliminary inquiry. If that is done away with, no issue would arise of legal practitioners appearing. In any case, they are entitled to appear in all later stages including trial. Finally, it should be clarified that clause 56 does not intend to abrogate or dilute or attenuate any other provision of law under where, by virtue of those provisions of law, the accused may be entitled to a monetary/ fiscal legal aid or assistance.[Para 15.16]
The Lokpal Miscellany: Residual Issues
98. Although it is implicit in the Lokpal Bill, 2011, the Committee believes that to obviate all doubts and to prevent any jeopardy to ongoing trials, the proposed Lokpal should have a specific provision categorically applying Section 4 (3) of the POCA to Lokpal proceedings, to enable the special judge or Lokpal judge to try any other offence, where connected, other than those covered by the Lokpal Act. [Para 16.3]
99. Clause 17 (1) in most of its sub-clauses, including (b), (c), (d) and so on, specifically refers to a current/serving as also a former public servant (e.g. Minister, MP, bureaucrat, etc. both past and present). [Para 16.4]
100. The Committee has seen the substantive provisions of POCA and it appears to be clear that the POCA, which shall continue to be the substantive law applicable to Lokpal trials and proceedings, seeks to render culpable and punish only official acts done by public servants. Be that as it may, the Committee is of the opinion that a specific provision should be inserted in Clause 17 clarifying and specifying that reference to present and former public servants only means that they can be prosecuted whether in or not in office, but only for acts/omissions done while they were in office and not for allegedly fresh acts/omissions after ceasing to hold office.[Para 16.5]
101. The Committee finds that clause 8 and especially clause 8 (1) of the Lokpal Bill, 2011 has struck the right balance and does not need any fundamental changes. It is intended to strengthen the independence and autonomy of the Lokpal by not making it easy to initiate complaints against Lokpal for the Lokpal’s removal. The Committee, however, recommends an addition to clause 8 (1)(iii), to allay and obviate the apprehension expressed in some quarters, that the process to remove the Lokpal cannot be initiated, under the sub-clause, if the President (which essentially means the Central Government) refuses to refer the complaint against the Lokpal. The Committee feels that this apprehension would be adequately taken care of by providing in clause 8 (1)(iii) that where the President does not refer a citizen’s complaint against the Lokpal to the Apex Court, the President (i.e. the Central Government) shall be obliged to record reasons for the same and to furnish those reasons to the complainant within a maximum period of 3 months from the date of receipt of the complaint. The Committee feels that this process, including the transparency involved in recording these reasons and the attendant judicial review available to the complainant to challenge such reason/refusal, contains an adequate check and balance on this subject.[Para 16.6]
102. Additionally, the Committee recommends that Clause 8 (1) (iv) be added in the existing Lokpal Bill, 2011 to provide, specifically, that anyone can directly approach the apex court in respect of a complaint against the Lokpal (institution or individual member) and that such complaint would go through the normal initial hearing and filter as a preliminary matter before the normal bench strength as prescribed by the Supreme Court Rules but that, if the matter is admitted and put for final hearing, the same shall be heard by an apex court bench of not less than 5 members. It is but obvious that other consequentiall changes will have to be made in the whole of Section 8 to reflect the addition of the aforesaid Clause 8 (1) (iv). [Para 16.6A]
103. Clause 21 of the Lokpal Bill, 2011 needs a relook. In its present form, it appears to empower the Lokpal Chairperson to intervene and transfer any pending case from one Bench to another, which appears to include the power of transfer even while a case is under consideration of the Lokpal bench on the merits. This uncircumscribed power would seriously impair the objectivity and autonomy of Lokpal Benches, especially at the stage of preliminary inquiry which is a crucial filtering mechanism. It also appears to be inconsistent with normal principles of jurisprudence which seriously frown upon interference even by the Chief Justice in a pending judicial matter before another Bench. The way out would be to delete this provision and to provide for transfer only in exceptional cases where, firstly, strong credible allegations are brought to the forefront in respect of the functioning of any particular Lokpal Bench and secondly, the decision to transfer is taken by not only the entire Lokpal institution sitting together, but also including the Members of the Bench from which the matter is sought to be transferred.[Para 16.7]
104. As regards punishment under the Prevention of Corruption Act for a person convicted of different offences relating to corruption, it is noteworthy that the Prevention of Corruption Act prescribes, as it now stands, punishment not less than six months which may extend to five years for various offences involving public servant taking gratification in Sections 7, 8, 9, 10 and also Section 11 which deals with public servant obtaining valuable thing without consideration. Section 12 of POCA dealing with the abetment prescribes the same as six months to five years range of punishment. On the other hand, for offences of criminal misconduct by public servant, the prescribed punishment is not less than one year, extendable upto seven years in Section 13 while Section 14 prescribes punishment of not less than two years extendable to seven years. Section 15 prescribes the punishment for offences referred to in clause C or clause D of 5.13(i) which has no lower limit but a maximum of three years. Additionally, all these provisions empower the imposition of fine. [Para 16.8]
105. Diverse representations from diverse quarters have suggested an enhancement of punishment, with diverse prescriptions of quantum of sentence, including life imprisonment. After deep consideration, the Committee finds it prudent to strike a balanced, reasonable middle ground. A sudden, dramatic and draconian enhancement is, in the opinion of the Committee, undesirable. The Committee cannot ignore the inherent fallibility of mankind and if fallibility is inherent in every system, draconian and extreme punishment, even in a few cases of wrongful conviction, would be undesirable. [Para 16.9]
106. Taking a holistic view, the Committee is of the opinion that:
(a) In the cases of Sections 7, 8, 9 and the like, the range from six months to five years should the substituted by imprisonment not less than three years which may extend to not more than seven years.
(b) In the Sections 13 and 14 category of cases providing for a range to one year to seven years, the Committee suggests enhancement, in the case of Section 13 offences, to a minimum of four years and a maximum of ten years while for Section 14, the Committee suggests a minimum of five years and a maximum of ten years.
(c) For Section 12 which presently prescribes six months to five years, the aforesaid of minimum three and maximum of seven years shall apply whereas for Section 15 which presently prescribes zero to three years, the range should be very minimum from two to maximum five years.
(d) Additionally, wherever applicable, there should be a general provision, cutting across Sections, creating a power of full confiscation of assets, proceeds, receipts and benefits, by whatever name called, arising from corruption by the accused. This provision should be properly drafted in a comprehensive manner to cover diverse situations of benefit in cash or kind, which, to the maximum extent possible, should fully be liable to confiscation. [Para 16.9A]
107. Although this issue has been discussed in other parts of this Report, for the sake of clarity, the Committee clarifies that there should be 3 specific and important time limits in the final enactment viz. firstly, the period of 30 days extendable once by a further period of 60 days for preliminary inquiry by the Lokpal; secondly, for completion of investigation by the investigating agency, within 6 months with one further extension of 3 months and thirdly, for completion of trials, within one year with one further extension of 6 months.[Para 16.10]
108. The Committee finds no basis for and no reason to retain the last proviso to clause 17 (1)(g) which appears to be overbroad and altogether exempts from the Lokpal Bill 2011 any entity, simply because it is constituted as a new religious entity or meant to be constituted as an entity for religious purposes. This proviso should be deleted, otherwise this exception would virtually swallow up the entire rule found in the earlier parts of clause 17.[Para 16.11]
109. As regards clause 51 of the Lokpal Bill 2011, the Committee recommends that the intent behind the clause be made clear by way of an Explanation to be added to the effect that the clause is not intended to provide any general exemption and that “good faith” referred to in clause 52 shall have the same meaning as provided in section 52 of the IPC. [Para 16.12]
( 4 His initial hesitation to this idea was probably due to the Scandinavian origin of the nomenclature of the institution. In a lighter vein, he happened to ask Dr. L.M. Singhvi “To what zoo does this animal belong” and asked Shri Singhvi to indigenize the nomenclature of the institution. Dr. L.M. Singhvi then coined the term Lokpal / Lokayukta to modify the institution of Ombudsman to the Indian context (as related by Dr. L.M. Singhvi to the Chairman of this Committee). Also referred to by Mr. Arun Jaitley M.P. during the Parliament Debate on 27th August 2011. He started the debate in the Upper House thus:-“Now, ‘Ombudsman’ was a Scandinavian concept and, coincidentally, on 3rd April, 1963, then an Independent young Member of the Lok Sabha, Dr. L.M. Singhvi, in the course of his participation in a debate for having an Ombudsman in India, attempted to find out what the Indian equivalent could be, and this word ‘Lokpal’ was added to our vocabulary, the Hindi vocabulary, by Dr. L.M. Singhvi who translated this word.”)
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.
VENKITESH RAMAKRISHNAN & AJOY ASHIRWAD MAHAPRASHASTA IN THE FRONTLINE
Interview with Arun Jaitley, BJP leader and Leader of the Opposition in the Rajya Sabha.
THE interventions in the monsoon session of Parliament by Arun Jaitley, the Leader of the Opposition in the Rajya Sabha, have been rated as “masterly” by a large number of seasoned Parliament-watchers. During the course of these interventions, which saw him make important observations on the legal and constitutional dimensions of the issues relating to corruption and the Lokpal Bill, the Bharatiya Janata Party leader also adopted the role of an “in-depth political analyst and visionary” who had cast off the limitations of a “narrow, sectarian politician”. In this interview to Frontline, Jaitley elaborated on these interventions and delineated his understanding of the future course of action on issues such as the Lokpal Bill. Excerpts:
Parliament has conceded three points raised by Team Anna on the Lokpal Bill, and the Standing Committee is going to look at the provisions of the Bill. What will be the broad road map on the issue?
Logically, all issues and viewpoints on which parliamentary consensus was built up after the recent debates will be placed before the Standing Committee. The committee should hold extensive public consultations and come out with a report expeditiously so that the final draft, with amendments, can be approved by the Cabinet. Hopefully, the government will introduce the amended Bill in the winter session.
What is the BJP’s position on the Lokpal issue?
There are two underlying principles that should guide the issue. There should be wide scope for government offices coming under the Lokpal’s jurisdiction. It should be a strong, independent Lokpal. The judiciary should have an alternative mechanism, where I prefer the National Judicial Commission. The appointment mechanisms should be completely independent; not excluding the government, but the government should not be able to be dominate or control it. So it should be an institutional mechanism. And it should be a mechanism where we are able to eventually bring in various other institutions. The institution of Lokpal should follow fair procedures. For instance, we should be able to bring in [under its purview] civil servants who work in state instrumentalities.
The only other factor that should be taken into consideration is that the Lokpal Bill should be consistent with constitutional requirements. There are four areas that need to be stressed in this connection. One, when you deal with the judiciary, you have to keep it independent of the executive. Therefore, the mechanism for the judiciary should be separate and not executive-centric.
Two, the principles of federal polity enshrined in the Constitution should not be affected by the Lokpal Bill. The Centre pressing for Lokayuktas in the States can compromise the federal principles of the Constitution. For instance, can the Centre legislate on a law dealing with State bureaucracy? My prima facie view is that with regard to some criminal law procedures, the Centre can, but not with regard to disciplinary and inquiry procedures against the State bureaucracy. The Centre can at best pass an enabling law under Article 252 of the Constitution [Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State] or a model law, but not a binding law. The States will have to do it. Therefore, the fight against corruption should not compromise the federal principles. I have already spoken about the issue to Team Anna.
Three, in relation to the conduct of the Members of Parliament inside the House, the Bill should be consistent with Article 105 of the Constitution [power and privileges of the Houses of Parliament and of the members and committees].
Four, in relation to who takes disciplinary action – those who hold a civil post in the Central and State governments have protection under Article 307; that constitutional protection should not be affected.
Now, having covered all these areas, we can say that the Prime Minister should be covered but we can exclude certain functions; functions predominantly in the areas of public order and national security.
There is a suggestion that the functions of intelligence agencies relating to external affairs should not be covered. These are issues that should be fine-tuned by the Standing Committee.
There are other questions, too. Such as whether the entire bureaucracy should be covered and whether it should be entirely under the Lokpal. I think we would like the entire bureaucracy to be accountable. But the government has said there can be a splitting of functions in which the lower bureaucracy can come under the Central Vigilance Commission. There is a third proposal, that the lower bureaucracy can be put under a CVC, which in turn could be monitored by the Lokpal.
Should MPs be covered? Yes, obviously, but what they say inside the House, protected by the privileges of Article 105, should not be covered. These are issues of workability and accountability, which the Standing Committee can look into keeping the major principles in mind.
I have objected to only one point that is found in both the Bills [the Jan Lokpal and the government’s Bill], that is, the bugging of telephones. This can compromise national security. It violates personal liberty. I hope the Standing Committee will consider this.
The idea of attaching property of those charged with corruption has also raised objections.
There are already laws in some States that address this issue. There is a law of 1945 called Criminal Law Amendment Ordinance. The principle behind attaching property is that you cannot profit out of corruption. The court can attach corrupt money, not an executive authority, and use it for national development. The money should not wither away or you should not be able to dispose of the corrupt money. Proceeds of narcotics and smuggling money are invested in the state. Why not in the case of corrupt money? Bihar has brought this law. Other States are following suit.
There is a view that the BJP has spoken in different voices, especially with regard to the Jan Lokpal Bill.
The positions I have enunciated in Parliament are the party’s positions.
Several votaries of the Jan Lokpal Bill hold the view that the existing anti-corruption laws are completely faulty and inefficient. Do you agree?
I think to say they are completely faulty may not be correct. They are a bit lax, a bit liberal, and capable of misuse. At times the law works, at times it does not. Seeing the enormity of corruption, you do not see so many people punished. A Lokpal may not be able to eliminate corruption but the fear of the Lokpal and of being tried under a fair mechanism may certainly be some kind of a deterrent.
Do you think this movement has created an unprecedented public sensibility?
I think this movement was genuine. No major parties participated. Sympathisers and workers did join it, but in their capacity as citizens. It was genuinely a citizens’ movement. It had a lot of goodwill. Such kind of consciousness is a positive development in India.
Do you subscribe to the view that such protest methods are symbolic of bypassing representative democracy?
I do not think it is fair to say that they were bypassing [representative democracy]. They were not saying they had the power to legislate, and not Parliament. Yes, they did bring pressure on Parliament. But we should treat them as a pressure group. They have the right to campaign and we have an obligation to listen to them. I think the government did not have a game plan. I have spoken to Team Anna at least three times. And on most issues, I have found its stand to be extremely reasonable, and after a little diversion we have converged on the same opinion. On the question of excluding certain functions of the Prime Minister, we are of the same view. Regarding the judiciary, we are of the same opinion also.
There is a feeling in many quarters that the political class as a whole has lost the moral authority in the context of the movement.
I do not think this is fair. You see, there is a campaign against the political class. The campaign is also against Parliament. I still believe that there are still a large number of good and honest people in various political parties. There are aberrations also. But there is still a space for decency and ethics in politics and that space is being encouraged by such strong public opinion. There is no reason to be cynical. But if you pick up each one of the debates in Parliament in this session, I can tell you some of the debates have been exemplary. For instance, if you see the debate on the day Anna Hazare was arrested, or on the Lokpal Bill, or the impeachment debate, the quality has been very good. The fact is that if private television channels feel that the debates are bringing them TRPs and they cut out to Parliament for speeches, that itself means that people are interested. The stronger the public opinion, the more the viewership of parliamentary speeches, both in the electronic and the print media.
Provocative statements are being made against Parliament. We must not be vindictive in our actions even then. We should not make angry reactions or get provoked. What we do on the issues will be our response to the people. Even without this movement, States such as Madhya Pradesh, Bihar, Uttar Pradesh, Punjab and Himachal Pradesh have brought out Citizens’ Charters. This is a significant response and this is the way it should be.
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.
Vandita Mishra: The Anna Hazare movement has been gaining momentum. In your interaction with MPs, do you see a shared sense of siege because of what is happening right now?
There is near unanimity in the country and amongst parliamentarians that corruption is a national issue. However, there is equal unanimity amongst parliamentarians that the way forward to address corruption is not to call into question the entire constitutional edifice where parliamentary supremacy in the matter of law-making is non-negotiable. In a republic inspired by Mahatma Gandhi, you can’t completely ignore the constitutional means for addressing a national malaise. But you should address corruption in a way consistent with the sanctity of our Constitution.
Coomi Kapoor: Are you saying unconstitutional means are being used? All they are doing is building up public opinion so that parliamentarians take into account the views of the public for this long delayed Bill.
The right to dissent, the right to protest and the right to mobilise opinion is given and it is respected and accepted. This is the reason why Anna and his team are fasting at Ramlila Maidan. In fact, the state is making all arrangements to facilitate the protest. What is an issue is the inclination to put a gun to the government’s head and say this is the Bill that you must legislate into law and you must do so by such and such time irrespective and in derogation of the established procedure of law-making as per the Constitution. How can you, in the name of advancing a laudable national objective, completely negate the permissible means under your Constitution? Now the argument is that we, the people of India, come first in the Constitution, therefore, everything else is subservient to the will of the people. Even with this I have no quarrel. But how do you determine the will of the people? The Constitution ordains that you determine the will of the people after every five years through an election. If you insult the collective judgment of the people of India, you are not advancing democracy. This is my view as a citizen of this country, as a constitutionalist, as a lawyer. The Constitution is intended to be a bulwark against the impulses of transient majorities. Majorities will come and go but the Constitution is supposed to be an enduring edifice.
Dilip Bobb: The general impression is that the government is now employing delaying tactics. How do you convince them that you are with them and not against them?
Let me tell you what this government has done so far: it’s not as if PM made his appeal for the first time last Tuesday–he used every opportunity to say that any peaceful contestation can be the subject of a debate. He has said, let us have a stronger Lokpal Bill based on a larger political consensus. He said he was not against the protest, he was concerned about Anna’s health. But don’t insist on forcing us to do something against the oath of our office. As a duly-elected government, we are voted into power and we want to uphold the Constitution of India. In the parliamentary process of law-making, the Standing Committee is a time-tested process which has produced very good legislation. Today, the atmosphere in the country is such that there is an earnestness to push for Lokpal as an instrument to remove corruption. But to say, do it by tomorrow and discount the Standing Committee procedure, to say that you want a bill to be rammed through in a manner that tomorrow somebody can ask why we have consciously ignored contrary views–that’s where we have issues. The same Constitution that gives me the right to the validity of my views, gives to the other the right to contest those views. But if you insist on deadlines, you are negating the first principle on which this republic is founded. What prevents another group from saying they will sit at Rajpath? If the government starts to buckle on issues of principle, the government will have no right to ask the citizens to comply with the law.
Coomi Kapoor: But the government has buckled, firstly by making Anna Hazare a member of the official drafting committee. Then you said the PM has to be out of the Lokpal and you buckled on that too. There has been a series of retractions from the government which shows that things are not that hard and fast.
There are give and take situations but there has never been a negation of an express constitutional stipulation. There is no bar on the Standing Committee to take into consideration the Jan Lokpal Bill.
Coomi Kapoor: But earlier the government had said it was not possible?
The difference is in what was being said by the Anna camp–that the Standing Committee should discuss “our” Bill. The process of law is that the Cabinet prepares a format which goes to Parliament, and that Bill is presented to the Standing Committee. There is no precedent for anyone insisting that the government takes only their Bill; if the government agrees with their Bill, it can present it to the Standing Committee as its own–there is no difficulty in that. But to tell us to disown our own Bill and to discuss only ‘your’ Bill amounts to law-making being outsourced to people who, as per the Constitution, cannot be the lawmakers. And the day you make a deliberate departure from the expressly stated and incontrovertible stipulation of the Constitution, you violate your oath of office. No government worth its name can consciously negate the fundamental principles of the Constitution.
Maneesh Chhibber: You said you can’t outsource lawmaking to anybody. So what is the National Advisory Committee (NAC) doing?
NAC is doing nothing other than submitting its suggestions. Name one law which NAC has insisted upon, the manner in which Anna Hazare is insisting. I cannot recall NAC ever insisting on anything.
Pradeep Kaushal: Why did you outsource drafting of the Lokpal Bill to the committee where half the members were from civil society?
It was a limited decision made in order to ensure that their views were fully taken on board. There is no constitutional or legal bar to not associate somebody with the draft. The bar is on the Bill we eventually bring before Parliament. After the drafting committee came to a conclusion, the ministers accepted some of Hazare’s suggestions and did not accept others. Then they presented the Bill to the Cabinet, which, in turn, endorsed it to make it a government Bill. That was presented before Parliament. We associated with these people purely to make sure that they had a full say in giving their inputs while the members of the government in that committee were formulating the draft.
Vandita Mishra: People say the government’s case is being made on too many legal, technical grounds and there is not enough of a political input.
Political issues are responded to politically as the PM has done last week. It is a political response of a sensitive and responsive PM who is concerned about the way things are developing, about the health of Anna Hazare. Legality and politics are not mutually exclusive to the extent that lawyers are able to backseat constitutional and legal issues and package them as part of the political response. I don’t see any inconsistency or mutual exclusivity between the two
Vandita Mishra: But what is the single largest source of hostility to the government?
My sense is that people tend to think we are not with them in the fight against corruption. As time has gone by and as the debate is put in the correct perspective, it is clear that this is a choice between the right ends and the right means. People are tending more and more to agree with our perspective. The letter PM wrote and the public appeal made earlier to Anna Hazare to give up his fast were intended as a decisive signal to bring the national discourse back from an idiom of confrontation to an idiom of rational discourse and dialogue.
Maneesh Chhibber: Would you agree that Anna Hazare’s arrest was a wrong move?
I have already said that if I had been in-charge of the situation on the ground, I would not have sent Anna Hazare to Tihar jail. I think the right course would have been to notify a place like a guesthouse to detain him on a preventive basis. I think things moved too fast and these nuances got lost.
Dilip Bobb: What is your personal stand on the issues of the Lokpal covering PM, the bureaucracy and the judiciary?
Constitutionally, it is completely impermissible. How do you expect the government to consider these demands? On the judiciary: we have a constitutional procedure to discipline judges. As for PM, he has repeatedly said he has no problem being under the ambit of the Lokpal. But it is not as if this PM is the only PM under contemplation. What is under contemplation is the office of the PM, who has been described as the keystone of the Cabinet arch. And if the keystone is disturbed, the arch collapses. It is my personal view that no prime minister should be subjected to a system of inquiry or prosecution where immediately on the receipt of a complaint, the entire regime is triggered. It is not the absence of laws that have prevented prosecution of PMs. We have had two PMs who have been prosecuted even without the Lokpal. We are being unfair to those honest officers in the government who actually prosecuted PMs and former PMs. It is not because of the absence of laws that corruption in the country is growing, It is because of the general decline in the moral fibre of most people that the country is going down.
Maneesh Chhibber: Very recently, the government removed CBI from under the RTI. Is that probity?
I believe the reason for keeping CBI out of RTI is ensure the integrity of the investigation as the accused can use RTI to get information about what stage the investigation is at, which might destroy the integrity of the investigation.
Raj Kamal Jha: This is hypothetical but if the same debate had happened under UPA-I, do you think you would have been on a stronger wicket than UPA-II under the shadow of CWG and 2G? What role has that shadow played in the current discourse?
I do agree that the atmosphere created in the country with allegations related to 2G and other issues have had an impact, consciously or unconsciously, on the sentiments of the people, and the sentiments of the lawmakers, even the judiciary. In fact, we are all impacted at a certain level–and rationality and objectivity sometimes become the casualty. I saw this phenomenon in the indictment of Justice Sen.
Coomi Kapoor: Did the prevailing atmosphere influence the views of parliamentarians who were not in favour of Justice Sen’s impeachment?
I believe, as a lawyer and not as a parliamentarian, that in a criminal case, two views are possible and if the prosecution has not proved its point to the hilt, the benefit of the doubt must go to the accused. That is not to say that the same principle applies when we have debates on issues such as this in Parliament. The parliamentarians, in their collective wisdom, took a view that the judgment would advance the cause of substantive justice for a cause.
Kaushal Shroff: The Jan Lokpal Bill states that seven members should approve any investigation against the PM, of whom at least four would be judicial members. Wouldn’t they understand the gravity of the issue involved and the repercussions of investigating a PM?
The fundamental issue is the environment in which our democracy operates. The imminent possibility of a mala fide prosecution or investigation into the conduct of the prime minister in the discharge of his extremely critical duties can have the effect of destabilising governments. This is the view that is taken by those who dispute the necessity of the PM in the Lokpal. There are others who believe that there are sufficient safeguards to see an abuse of the law doesn’t take place. If Parliament in its wisdom decides to put the PM under the Lokpal, so be it. But there are two strong views and somebody has to decide which view must prevail. Which is that instrumentality in the scheme of our constitutional order which takes the final call? Parliament, in its collective judgment, where all shades of political opinion are reflected.
Vandita Mishra: Some people in your party say Rahul Gandhi should step into the Anna Hazare negotiations.
Rahul Gandhi enjoys a preeminent position in the party. He has a very incisive instinct on many issues. His counsel is always available to the party. As the Congress general secretary, he doesn’t have to ask anyone before intervening. For all you know, he may be involved in giving his advice in the manner he deems fit. It is his call how to intervene, when to intervene and on what issues to intervene.
Sourabh Jyoti Sharma: Transparency International Report 2010 says the judiciary is the second most corrupt institution in India after the police. Do you want to bring a stronger Judicial Accountability Bill in Parliament?
The Judicial Accountability Bill will be brought before Parliament. The government remains committed to it. There is a broad consensus on it. We need to ensure that there is an adequate mechanism to deal with allegations of lack of probity in the judiciary.
Sourabh Jyoti Sharma: What is your view, as a lawyer, on the collegium system of judicial appointment?
On judicial appointments, the experience has been mixed. I don’t think the collegium system has always achieved the desired results.
Unni Rajen Shanker: Many people are talking for the government in the media. Are you being briefed before you talk?
There is so much information on the issues at hand, we almost drink, eat and breathe these issues. The senior people who go on TV channels do have their own perception of what is required to be said and if there is a doubt in their minds, they are always free to seek clarification.
Vandita Mishra: What is the feedback your parliamentarians are getting from the ground, from outside big cities like Delhi? Do they face the same outrage or is there a distinction to be made?
Nobody disputes that the issue of corruption has caught the imagination of the country. The point of contestation is how does the nation together move forward in a direction that will minimize the scourge of corruption and show that the fundamentals of our body politic are not constantly being eroded by this menace. It is a great tragedy that the current UPA leadership of Sonia Gandhi and Manmohan Singh known for their deep commitment to probity in public life should have to bear the brunt in a very unjust and a very unfair manner just because an atmosphere in the country has been created where the responsibility for all that is wrong lies with the government. Look at the series of initiatives the government has taken on corruption: has anyone else take such corrective measures?
When did a serving minister go to jail, when did we send the top bureaucrats to jail? It is said this was done because Supreme Court wanted it to be done. Who went to Supreme Court and asked, through CBI that the Supreme Court monitor the investigations so that the people of India should not think anybody was being protected? We must at least be given credit for vigorously pursuing the cases of corruption. The proof of the pudding is in its eating. Judge me not by what I say but by what I do and this government has taken conscious, purposive and strong action where strong prima facie cases of corruption have been an issue. One more thing; these are the people who have been behind bars for the last several months and whose bail applications have not been granted. As a lawyer I ask myself, is bail the rule and jail an exception or jail the rule and bail an exception? As early as 1977, Justice Krishna Iyer said bail is the rule as it subserves the cause personal liberty and jail in an exception. You must jail only those people who are hardened criminals who can pervert and thwart the course of justice. I sometimes wonder whether someone can be denied liberty merely because the atmosphere is in favour of hanging those without convicting them. At another level, there are proposals that nobody can contest an election if there is a charge of a criminal offense against him. It is said this is the best way to eliminate criminals from politics.
But it is a dangerous path to follow. We have a great law and a great legal architecture but we also know that laws are abused. It is easy to have a false charge against someone in a mofussil town. Years of reputation built in public affairs, a man’s political career can be destroyed. The answer to the criminalization of politics is not in riding roughshod over fundamental principles that are intended to safeguard your liberties and your inalienable rights embedded in the Constitution. Let us not tinker with the fundamental principles of our republic on account of impulses of the moment. All constitutions are designed to secure the nation against intensities of the momentary impulses. If you tinker with the Constitution, you will never be able to restore its integrity.
Vandita Mishra: The burden of your argument is that there is an atmosphere in the country and the government is an unfortunate victim of that atmospehere. Would you not admit to a single mistake the government has made in contributing to this atmosphere? Has the absence of Sonia Gandhi made a difference?
Sonia Gandhi’s absence is deeply felt at all critical moments and even otherwise both in the party and in the government. Her presence, her guidance, her sage counsel and advice has been a great source of strength to the UPA government and Congress. I will be the last person to say this government, or any government, is infallible. There could be a bona fide error of judgment like sending Anna Hazare to Tihar Jail. Governments do make mistakes but as long as they are bona fide and are redressed and corrected, I think the benefit of doubt must remain with the government.
People throw out governments when they don’t find their explanations convincing. The choice is not between a perfect government and an imperfect government, the choice is between a bona fide governance and misgovernance.
Following is the text of the Prime Minister Dr. Manmohan Singh`s opening remarks at the All Party Meeting on Lokpal Bill:
I welcome you all to this All Party Meeting on the Lokpal Bill, which is before the Standing Committee. In our last meeting on July 3, we all had agreed that we must enact a strong Lokpal Bill which can deal with the menace of corruption. During the meeting, two Lokpal Bills, one prepared by the official members of the Joint Drafting Committee, and the other, the Jan Lokpal Bill, were presented before you. The consensus that emerged was that the Government should bring a strong and effective Lokpal Bill in the coming Session of the Parliament for enactment by following the established legislative procedure.
The Government had accordingly prepared a Bill and introduced it in the Lok Sabha on 4 August, 2011. The Bill was referred to the Standing Committee on Personnel, Public Grievances, Law and Justice and it is being discussed in that Committee. Meanwhile, Shri Anna Hazareji and his colleagues have continued to maintain their stand in support of the Jan Lokpal Bill. Shri Anna Hazareji went on fast at the Ramlila Maidan from 16 August to press for their demands.
I have personally stated the Government’s position in public on more than one occasion. We want a strong and effective Lokpal Bill. Accordingly, we would like the Standing Committee to consider all points of view to evolve a broad based national consensus to create a strong institution of the Lokpal.The fast of Shri Anna Hazareji and his failing health are a matter of concern to all of us. Yesterday, I felt that I should take a personal initiative to appeal to Shri Anna Hazareji to end his fast so that we may work together in a spirit of cooperative engagement to bring into existence a strong Lokpal.
Accordingly, I wrote to him requesting him to end his fast and reiterated Government’s intention to pass the best possible Lokpal legislation with inputs from civil society and on the basis of the broadest possible consensus. I said that the matter was with the Standing Committee and the Committee was entitled to consider not only the Bill introduced by the Government but the Jan Lokpal Bill and other versions like those prepared by Shrimati Aruna Roy as well. I said that our Government was prepared to request the Speaker of the Lok Sabha to formally refer the Jan Lokpal Bill also to the Standing Committee for their holistic consideration along with everything else. I also said that the Government can formally request the Standing Committee to fast-track their deliberations to the extent reasonably feasible, subject to its discretion and the necessity to reflect deeply and spend adequate time on such an important Bill.
Following this, Shri Anna Hazare agreed to hold discussions with the Government. Accordingly, Shri Pranab Mukherjee and Shri Salman Khurshid met with three of his representatives to find a way out of the present impasse. Broadly their position is that (a) the Government should withdraw the Bill introduced in Parliament (b) the Jan Lokpal Bill should be introduced with some changes in Parliament within four days and (c) this Bill should be discussed and passed during this session of Parliament by extending it if necessary, with minor amendments adopted by Parliament, and without referring the Bill to the Standing Committee. If a written commitment can be given with timelines, then the representatives said they can hopefully persuade Annaji to stop his fast. I will ask Pranabji to brief us later in more detail on what transpired in the meeting.
Our common objective is to build a strong and independent institution that will deal effectively with corruption, which is a major challenge that confronts our democracy and our nation. Recent developments have raised issues, related to the functioning of our Parliamentary democracy, that concern all of us. I, therefore, thought it appropriate to convene this meeting to brief you on these developments and seek your guidance on the way forward.”
Government is working on a Bill that envisages an Ombudsman to look into the complaints against lawyers and a Legal Services Board that would regulate law practices in the country. Giving this information in written reply to a question in Rajya Sabha, ShriSalman Khurshid, Minister of Law & Justice informed the House that a draft Bill titled “Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the interest of Clients and Promoting the Rule of Law) Act, 2010” was drafted and uploaded in the website of the Ministry of Law & Justice inviting comments and suggestions of the stakeholders. Comments are being received. Shri Khurshid said the draft Bill will be reviewed based on these comments.
As per the proposed Bill, the complaints against the legal professionals will be examined by the Ombudsman and the report of the proposed Ombudsman will be forwarded to the Disciplinary Committee of the Bar Council of the State with a copy to the proposed Legal Services Board. The Disciplinary Committee of the Bar Council shall consider the report of the Ombudsman and if such report is not accepted by the Bar Council, the reasons for rejection of the recommendations of the Ombudsman shall be explained in detail and the same shall be published in the manner prescribed by rules. This will not in any way minimize the role of Bar Councils, Shri Salman Khurshid said.
However, Clauses 30-33 of the proposed draft Bill empower the Board to issue directions to the Bar Councils in certain specified circumstances and enables the Board to approach the High Court for enforcement of the directions if the Bar Councils fail to comply.
It’s been more than fifteen years since the Supreme Court passed its judgment in the Vishaka Vs. State of Rajasthan (Vishaka), and ten since the Medha Kotwal case. Vishakha constitutes the Indian Judiciary’s first pronouncement on gender justice in the workplace.“Harassment”was interpreted to include physical contact and advances, sexually coloured remarks, any physical verbal/non verbal overture or a demand/request, as being indicative, and not comprehensive. The Court prescribed certain guidelines and norms as representing the minimum standards to be followed by employers and other responsible persons in containing and dealing with harassment, bearing in mind that neither civil or penal laws provided adequate protection, till such time a law was enacted. Certain acts of sexual harassment constitute criminal offences, as under section 209 of the Indian Penal Code for performing an obscene act or utterance, and also under Sections 354 and 509 for outrage of modesty of women. But these provisions can not address the various insidious forms sexual harassment can take, and more important, the redressal is not the organisation’s responsibility.
In the absence of indigenous jurisprudence, the Supreme Court relied heavily on the International Convention of All Forms of Discrimination Against Women (CEDAW) which India had recently signed and ratified, and the Protection of Human Rights Act, 1993. However the Government took no interest in pushing the law.
On the other hand, various corporations, multinationals as well as domestic, particularly listed companies, which are subjected to higher degrees of transparency and disclosures, established their internal systems, including grievance cell and a Committee with a senior woman employee as the Chair. Welfare and safety requirements of the women in the work place, such as late night transport, night were firmed up after the murder of a BPO female employee by the cab driver. Instances of complaints and incidents usually do not escalate beyond the HR Department and the Committee. To the limited extent I have been involved as a legal adviser, such issues are usually effectively resolved, or any one party or both move out with or without a gentle nudge from the management. Otherwise, there is complete opacity, particularly in the fast growing services sector, where women are a significant part of the work force, in the implementation of all or any of the Vishakha safeguards, as there is no threat in non-compliance, in the absence of a law. Even then several complaints have reached the High Courts, and the victims have secured justice, notably in the Tata Metallic and Apparel Export cases. More often, the breach has been in the constitution and functioning of the Committee and this was exposed in Medha Kotwal’s Petition before the Supreme Court, wherein on the revelation that the Government was the worst offender, the Court called upon the Central & State Governments and various professional bodies, such as the Bar Council of India to disclose the measures taken by them.
The Bill, introduced in 2010 and referred last month to a Standing Committee, has finally moved, notwithstanding enormous resistance. It.has its critics, but is well drafted., and endeavours to include every type of victim in its definition of an “Aggrieved Women”, who does not have to be an Employee to qualify and to bring within its ambit , students, research scholars, patients. “Employee” has been amplified to include trainees, apprentices, contract and adhoc workers. Perhaps inclusion of “service provider” and “customer” would have provided a more inclusive connotation. Contrary to media reports, the Bill specifically includes domestic worker and “dwelling house” belying the popular impression that this sector has been ignored.
“Workplace” definition deals with every kind of environment which would qualify, in the private and government sectors as well as dwelling places, vehicles, aircrafts, different destinations, hotels in trying to capture all possible locations where harassment having a nexus with workplace or the victim can be perpetrated. The acknowledgement of this concept is critical in the context of the diversity of locations where harassments are perpetrated, rape of a female complainant in a police station being an example.
Interestingly “sexual harassment” is not defined. Section 3 of the proposed bill describes this to include unwelcome sexually determined behaviour, and the various items conceptualised in Vishakha, making it clear that is not limited to any assurance of preferential or threat of detrimental treatment, conduct which is humiliating or inducive to a hostile and unhealthy work environment.
While laws should aim at obliterating sexual harassment and the mindset that evokes such behaviour, panic levels should not be escalated. Every light flirtation or a wolf whistle is not necessarily an act of sexual harassment. Every environment and not all classes of harassment cannot be subject to a uniform policy.
What doesn’t make headlines is the gender neutral subtle and non-violent harassment in the workplace, unrelated to sexual expectations or quid pro quo, which can be based on colour, caste, religion, nationality, age, political affiliations, and the aggression is manifested by way of belittling observations, persistent criticism of work, withholding resources. Till such time the law makers and the Government acknowledge this,,,the victims of such harrasment are without recourse.