Lokpal bill and the Prime Minister

A cropped Manmohan Singh version of File:IBSA-...

Image via Wikipedia

ANIL DIVAN IN THE HINDU

When the basic structure of the Constitution denies the Prime Minister immunity from prosecution, how could it be argued that the office should not be brought under the scrutiny of the Lokpal?

The Indian citizenry is up in arms against corruption at the highest levels of government. Anna Hazare‘s movement has caught the people’s imagination. The former President, A.P.J. Abdul Kalam, has pitched in and called upon the youth to start a mass movement against corruption under the banner “What can I give?” (The Hindu, June 27, 2011).

According to a CRISIL report (The Hindu, June 29, 2011), inflation has caused the Indian public to be squeezed to the extent of Rs. 2.3 lakh crores. According to the Comptroller and Auditor General of India (CAG), the estimate of loss to the exchequer owing to the 2G spectrum scam is Rs. 1.22 lakh crores. That corruption is a disease consuming the body politic is a fear expressed by dignitaries in India over many years. As far back as 1979, Justice V.R. Krishna Iyer observed in a judgment in his inimitable style: “Fearless investigation is a ‘sine qua non’ of exposure of delinquent ‘greats’ and if the investigative agencies tremble to probe or make public the felonies of high office, white-collar offenders in the peaks may be unruffled by the law. An independent investigative agency to be set in motion by any responsible citizen is a desideratum.”

Mark the words: fearless investigation by an independent investigative agency against delinquent ‘greats’. A good Lokpal bill has to be nothing less.

It is in this context that this article addresses the issue of whether the Prime Minister should be brought under the ambit of an Ombudsman (Lokpal) and be subject to its scrutiny. It is important to observe that in most of the Lokpal bills, including the 2010 government draft (except the 1985 version), the Prime Minister is within the ambit of the Lokpal.

The Constitution

Under the Indian Constitution there is no provision to give immunity to the Prime Minister, Chief Ministers or Ministers. Under Article 361, immunity from criminal proceedings is conferred on the President and the Governor (formerly the Rajpramukh) only “during his term of office.”

So what is the principle behind such immunity being given? The line is clearly drawn. Constitutional heads who do not directly exercise executive powers are given immunity as heads of state. Active politicians such as Ministers, who cannot remain aloof from the hurly-burly of electoral and party politics, ethical or unethical, honest or corrupt, are not given any immunity. They are subject to penal laws and criminal liability.

The basic structure of the Constitution clearly denies immunity to the Prime Minister.

Internal Emergency

During the period of the Internal Emergency (1975-77), Indira Gandhi enjoyed dictatorial powers. She detained without trial prominent Opposition leaders and was supported by a captive and rump Parliament.

The Constitution (Fortieth Amendment) Bill was moved in, and passed by, the Rajya Sabha in August 1975 and later it was to go before the Lok Sabha. The Bill was blacked out from the media and hence very few people knew about it. It never became law because it was not moved in the Lok Sabha.

The Bill sought to amend Article 361 by substituting sub-clause (2) thus: “(2) No criminal proceedings whatsoever, against or concerning a person who is or has been the President or the Prime Minister or the Governor of a State, shall lie in any court, or shall be instituted or continued in any court in respect of any act done by him, whether before he entered upon his office or during his term of office as President or Prime Minister or Governor of a State, as the case may be, and no process whatsoever including process for arrest or imprisonment shall issue from any court against such person in respect of any such act.”

The attempt to give life-time immunity from criminal proceedings for acts done during and even prior to assuming office, of the President, the Governor and additionally the Prime Minister, did not materialise.

Foreign jurisdictions

In Japan, Prime Minister Kakuei Tanaka (July 1972 to December 1974) was found guilty of bribery and sentenced. In Israel, Prime Minister Ehud Olmert was indicted in corruption scandals in August 2009. In Italy, Prime Minister Silvio Berlusconi enacted, through a pliant legislature, a law by which he shielded himself from prosecution. The Italian Constitutional Court recently invalidated crucial parts of that law, which may result in his trial being revived.

The following are some of the main arguments against bringing the Prime Minister under the Lokpal’s scrutiny. The first one runs thus: “The simple answer is, if the Prime Minister is covered under ordinary law (the Prevention of Corruption Act), you don’t need him covered under Lokpal.” This is a view that has been attributed to the former Chief Justice of India, J.S. Verma (Hindustan Times, June 27, 2011). Any misconduct by a Prime Minister can be investigated by the Central Bureau of Investigation: this view is that of Chief Minister Jayalalithaa (The Hindu, June 28, 2011). This objection concedes the principle that the Prime Minister is not immune from criminal liability and can be investigated, but argues and assumes that the Prevention of Corruption Act and the CBI present effective existing alternative procedures. Nothing could be farther from the truth and the ground realities.

What is the ground reality? First, the CBI, the premier anti-corruption investigative agency, is under the Department of Personnel and Training, which is controlled by the Prime Minister’s Office (PMO). Secondly, the career prospects of CBI officers and other personnel are dependent on the political executive, and all officers are subject to transfer except the Director. Thus, the investigative arm is controlled by the ‘political suspects’ themselves. Thirdly, the Single Directive, a secret administrative directive that was invalidated by the Supreme Court in the Jain hawala case in 1997 (Vineet Narain v. Union of India) has been legislatively revived. Consequently, under Section 6A of the Delhi Special Police Establishment Act, the CBI is disabled from starting an inquiry or investigation against Joint Secretary or higher level bureaucrats without the Central government’s prior approval. Therefore, the Prevention of Corruption Act is a non-starter against Ministers and high-level bureaucrats who may act in concert. It is imperative that the CBI’s anti-corruption wing be brought under the Lokpal and not under the PMO. This alone would meet the test of an independent and fearless investigative agency as enunciated by Justice Krishna Iyer.

Secondly, it is argued that if the Prime Minister is within its ambit, the Lokpal could be used by foreign powers to destabilise the government. Today, the checks on the executive government are the higher judiciary, which has actively intervened in the 2G spectrum scam and other scams; the CAG, whose reports against the functioning of the telecommunications sector triggered investigations into scams; the Election Commission headed by the Chief Election Commissioner, which conducted elections in West Bengal in the most efficient and orderly fashion. All these authorities could be undermined by a foreign power. Why should the Lokpal alone be the target of a foreign power? Why not the intelligence and defence services? Why not leaks from Cabinet Ministers and their offices — bugged or not?

Thirdly, it is argued that bringing the Prime Minister under the Lokpal’s scrutiny would mean a parallel government being put in place. This objection is disingenuous. Do the Supreme Court and the higher judiciary constitute a parallel government? Is the CAG a parallel government? Is the CEC a parallel government? Is the CBI a parallel government? The answer is clear. These constitute checks and restraints on the political executive and the administration so that public funds are not misappropriated and constitutional democracy and citizen rights are not subverted. The Lokpal will be under the Constitution and subject to judicial review, and it is imperative that the anti-corruption wing of the CBI be brought under the Lokpal. There is no question of any parallel government. The Lokpal will be only a check on the corrupt activities of the Executive. If all checks and balances are to be regarded as the marks of a parallel government and therefore abolished, it will be a recipe for dictatorship.

William Shakespeare wrote: “There is a tide in the affairs of men, which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life is bound in shallows and in miseries.” There is a tide in the affairs of this country and there is a great opportunity to promote good governance through a powerful and independent Ombudsman. India’s economic reforms, for which the Prime Minister deserves approbation, should not be derailed at the altar of scams and corruption. Will his leadership ride on the tide of fortune and take the country forward to greater heights?

(Anil Divan is a Senior Advocate, and president of the Bar Association of India. E-mail: abdsad@airtelmail.in)

http://www.thehindu.com/opinion/lead/article2148073.ece

Justice V.R. Krishna Iyer, former Judge of the Supreme Court, writes in the context of the article by Anil Divan headlined ‘Lokpal bill and the Prime Minister,’ published on July 1:

Lord Acton, the great British jurist, rightly said: “Power tends to corrupt and absolute power corrupts absolutely.” The Prime Minister is the custodian of the considerable state power. He has to be under public scrutiny.

Therefore I have clearly expressed the view that if power is to be subject to public investigation and scrutiny, he has to be within the ambit of the Lokpal Bill and cannot be exempted from it. Likewise, our judiciary is the watchdog of the Executive. People look up to the judges to ensure that the Executive does not misbehave. The judiciary must be accessible to every citizen who has a grievance against the robed brethren. When Parliament resorts to misconduct and violates the Constitution, people appeal to the judges for a remedy. In this view, the judges are sublime and must have control over the Executive and the parliamentary process. Both these instruments are under the Lokpal’s proposed jurisdiction. There is no case of exemption of these authorities. I am sorry that some high Chief Justices have expressed a different view. I disagree. The greatest menace before India today is that the judiciary itself is corrupt and no action is being taken. There must be a militant, active nationwide movement against corruption. A powerful instrument must be set up for this if the confidence of the people is to be preserved.

The judiciary and the Prime Minister shall be under the Lokpal. The Lokpal itself must be of the highest order and should be plural in number. The Prime Minister and the judiciary shall be like Caesar’s wife: above suspicion.

Advertisements

‘Needed: a single, empowered Lokpal to fight corruption’

Vidya Subrahmaniam in THE HINDU

Santosh Hedge, Prashant Bhushan have drafted alternative bill


Existing system “flawed,” the probe being divided among multiple, ineffective agencies

Draft aims to bring whistleblower protection within Lokpal ambit


New Delhi: Santosh Hedge, Lokayukta of Karnataka, and Prashant Bhushan, Supreme Court lawyer, have drafted an alternative Lokpal bill — there have been several official versions — with the aim of replacing the existing, mutually exclusive anti-corruption agencies with a single, autonomous apex body empowered to investigate and prosecute politicians, bureaucrats and judges.

The draft bill also aims to bring whistleblower protection, currently in the form of a separate bill, within the ambit of the Lokpal.

The draft bill, recently released to the media by the non-profitable NGO, Parivartan India, has been sent to the Prime Minister and the Chief Justice of India. In identical letters, dated December 1, to Manmohan Singh and Justice S.H. Kapadia, Arvind Kejriwal of Parivartan and other signatories described the existing system of investigating corruption as deeply flawed what with the task being divided among multiple, ineffective agencies.

The letters pointed out that while the Central Vigilance Commission (CVC) and the Comptroller and Auditor-General of India (CAG) were independent, they were rendered toothless, being advisory bodies that were invariably overruled by the government in power. On the other hand, the Central Bureau of Investigation (CBI) was dependent on the government for permission to investigate and prosecute. The CBI lawyers were appointed by the Law Ministry and they reported to it. This explained the demand for Supreme Court-monitored investigation into the 2G spectrum scam.

The letters said this led to a situation where the “high and mighty” never got punished while the poor were harassed for petty crime in police stations. “In view of this state of affairs, we need a total overhaul of the anti-corruption delivery system,” the signatories said.

The draft bill proposes a single, autonomous Lokpal combining within it the powers and mandate of the CBI and the CVC and with jurisdiction over politicians, bureaucrats and judges. Besides being able to independently initiate investigation and prosecution without prior permission from any other agency, the body will act as an appellate authority in respect of public grievances linked to bribery.

The whistleblowers, currently under the supervision of the CVC, will also come under the protective purview of the Lokpal. The members and the chairperson of the Lokpal, 11 in all, will be selected by a transparent and participatory process and any complaint of wrongdoing against a member will be required by law to be investigated and acted upon within a month through a transparent process. In the event that the charges are upheld, the loss to the exchequer by the officer’s wrongdoing will be recovered.

Explaining why whistleblowers were brought under the draft bill, Mr. Kejriwal said they mostly reported political corruption. “But because they are under the CVC, which has no jurisdiction over politicians, they have no effective protection and many of them live in danger. The draft bill aims to rectify this unfortunate situation.”

Strengthening the CAG’s hands

Ramaswamy R. Iyer in The Hindu

A set of suggestions to ensure the effective functioning of one of the nation’s most important constitutional functionaries.

The institution of Auditor General, established in 1860, became Comptroller and Auditor General of India (CAG) with the commencement of the Constitution. On the occasion of the initiation of year-long celebrations to mark 150 years of the institution, may one, as a former member of the Indian Audit and Accounts Service, put forward a few suggestions (numbered for convenience) aimed at enhancing the effectiveness of the institution?

1. It is a matter of regret that the CAG, regarded by Dr. B.R. Ambedkar as the nation’s most important constitutional functionary, is not as prominent in the public consciousness as the Chief Election Commissioner or the Central Vigilance Commissioner. (At the present moment, the 2G spectrum allocation controversy has brought the CAG into some prominence, but this temporary salience may not last very long.) It seems desirable that the findings of Audit should not only be reported to the President and Parliament as close to the events as possible, but also made known simultaneously to the media and the public, with some explanations to aid understanding. It is for the CAG to decide how best the work of the Indian Audit Department, which the CAG heads, could be made more visible and intelligible. This is not to gain publicity for itself, but as a means to make it more effective. (Timeliness is important in this context. While audit must necessarily take place after the event and cannot be literally concurrent, the closer the reporting is to the event the more effective it is likely to be.)

2. There is now a vast accumulation of Audit Reports submitted over the years both at the Centre and in the States, and not all the matters reported upon have been discussed in Parliament or in the State Legislatures or in the media. It seems desirable to rescue at least some of the important cases from falling into oblivion. How best this can be done must be left to the CAG, but many past errors, deficiencies, irregularities and so on may still deserve attention despite the passage of time. An effort to salvage at least a part of the valuable work done during the last several years seems necessary.

3. The Audit Department is often exhorted to shed its narrow perspective and look at the big picture. That criticism is to some extent echoed even within the Department. While acknowledging the importance of a larger vision and a broader perspective, it must be pointed out that it is basic (or ‘routine’ or ‘pettifogging’) audit that brings to light irregularities, improprieties and fraud. That is the Department’s core function, and the pursuit of higher aims should not be at the expense of the core function. Nor should the auditor feel uncomfortable or apologetic about performing the often deprecated but essential job of ‘fault-finding.’ The present CAG ought to raise the status of the humdrum audit function in the value system of the Department, and persuade the Executive government and Parliament to realise that this is a vital part of the Department’s work.

4. There is of course the opposite criticism of overreach when Audit widens its horizons and attempts to examine efficiency or ‘cost-effectiveness’ or propriety. The criticism is untenable because any meaningful audit must necessarily go into these aspects, and the supreme audit institutions of many countries do so as a matter of course. A further and recurring refrain is that audit has an inhibiting effect on decision-making and paralyses initiative. The answer to such criticisms is not to whittle down the audit function but to ensure that it is performed carefully and well. It needs to be realised that audit is an important, indeed vital, function. It is not a necessary evil that is to be tolerated, but a positive good that is to be welcomed.

5. A forgotten aspect of the audit function is that of discovery or detection. Speaking subject to correction, it is difficult to recall any recent instances of a major scandal having been ferreted out by the audit process. Most of the cases that have figured in public debates have come to light in other ways. The CAG’s reports have come later and have in some cases confirmed and substantiated or modified the general impression of wrongdoing already created by the media. There is a need for the Audit Department to rediscover the role of auditors as financial and accounting detectives.

6. When faced with executive intransigence (denial or delays in the provision of documents or information, evasive replies, and so on), the CAG does not appear to have many weapons in his armoury to compel cooperation. That, at any rate, is the general impression. In this writer’s view, the CAG is not as helpless as this situation seems to indicate. The constitutional provisions and the provisions of the CAG’s Act do hold the potential to make the CAG a forceful authority, and it is for the CAG to make full use of that potential. Remember how T.N. Seshan transformed the Election Commission using the relevant constitutional and statutory provisions, and how N. Vittal left the institution of CVC somewhat stronger than it was earlier. If the present CAG is able to do for the institution what Mr. Seshan and Mr. Vittal did for their respective institutions, he will go down in history as the most effective CAG since the adoption of the Constitution.

7. A limitation arises from the fact that Audit is an examining agency, not an investigating one. The Indian Audit Department scrupulously confines itself to looking at the books, documents and papers submitted to it. The Department refuses to pursue its inquiries beyond these and undertake even limited checking outside the books. While this approach is valid in principle, in practice there is a case to relax it somewhat and do a degree of independent checking or verification of the facts stated in the documents. The supreme audit institutions in some countries do this. It is for the CAG to consider whether there is merit in this suggestion, and if so, how it should be adopted, and with what safeguards.

8. Lastly, corruption, even more than fraud, is the national malaise. Audit is not the prime safeguard against it; other investigating agencies are charged with the responsibility of dealing with it. However, given the wide prevalence of this deadly disease, it seems desirable that the Audit Department should do what it can to counter it. Though corruption is clandestine and takes place outside the books, it is likely to leave tell-tale marks here and there. Even from well-maintained books, a whiff of corruption may rise. Audit can remain alert to such indirect indications and develop a nose for the smell of corruption. The provision of such an orientation to Audit is a matter for the CAG to consider.

These suggestions, aimed to enhance the effectiveness of the CAG, are respectfully offered to that constitutional functionary for consideration.

In conclusion, there is one point that the government, Parliament and the Public Accounts Committee will need to consider. It seems self-evident that the process of selection of such an important constitutional functionary should be open, objective and credible. This is best ensured by a committee procedure of the kind statutorily laid down for the Central Vigilance Commission and the National Human Rights Commission. This suggestion has been made earlier, but there has been a strange lack of interest in the matter. This issue cannot be examined in detail here. (Please refer to the author’s article in the Economic and Political Weekly, issue of December 31, 2005.)

This suggestion is meant for future appointments and implies no reflection on past appointments. This writer holds some of the incumbents of this honoured position in high regard.

Source:     http://www.hindu.com/2010/11/25/stories/2010112563061200.htm