The Lokpal and the CBI

JAN LOKPAL BILL

JAN LOKPAL BILL

R K RAGHAVAN IN THE HINDU

The ushering in of a Lokpal should in no way dilute the CBI’s legal authority or operational effectiveness.

It is a happy turn of events that there is, at last, a kind of truce between the Central government and the Anna Hazare Team on the Lokpal issue. Both sides have displayed a measure of maturity that augurs well for the future of public life in India. The stage is now set for some animated but objective discussion of the law that will concretise the idea of a strong ombudsman. It is not enough for the two sides to say that they are for a credible Lokpal. They need to go the extra length to accommodate each other’s sensitivities. Otherwise things will be back to square one. This is why a lot of importance should be attached to the meeting of the Parliamentary Standing Committee scheduled in the next few days.

The Anna Team’s focus is rightly on the status of the Central Bureau of Investigation (CBI) in the future scheme of things. With all its faults — some real and many imaginary — the CBI is still the best bet to strike at the venality that marks public life in India.

To say that politicians alone are guilty of corruption, an impression given by the Anna Team, is greatly skewed. Civil service misdeeds are equally enormous and cannot be ignored. Take, for instance, the recent arrest of a senior Income Tax Department official who allegedly demanded a sum of Rs.50 lakh to overlook the suppression of unaccounted income by a company. Instances are legion of top officials of enforcement agencies asking for a bribe without any sense of shame or fear. The magnitude of corruption in the Central government departments is mind-boggling, and this is why we first need an effective anti-graft machinery at the Centre, rather than in the States. The corruption in the States could be tackled subsequently. If the Lokpal is unable to cut at the roots of the civil servant-politician nexus in promoting dishonesty, it would have hardly justified its creation.

The ushering in of a Lokpal should in no way dilute the CBI’s legal authority or its operational effectiveness. This should be the starting point for any discussions of the Standing Committee. A former Union Minister, referring to the plea for total autonomy for the CBI from the Executive, asked this writer some time ago as to who exactly the organisation should be answerable to if it wants to be autonomous — particularly when monitoring of all CBI cases by the judiciary was impractical. This query by an otherwise well-meaning public figure summarises the political perspective of the whole issue of the CBI’s autonomy. It reveals the unconcealed desire of the average politician to somehow retain at least a semblance of control over the CBI.

It is generally known that the senior bureaucracy is also not exactly unhappy with the current state of affairs wherein the CBI is under the thumb of the Department of Personnel. Perhaps the most significant move that came in 2003 was the insertion of Section 6A in the Delhi Special Police Establishment (DSPE) Act, 1946, making it mandatory for the CBI to get prior government permission before it can even proceed with a preliminary enquiry (PE) against an official of and above the rank of Joint Secretary. This was a dubious amendment to the Act, based on the specious ground of saving civil servants from needless harassment by the CBI. But it amounted to deliberate emasculation of an organisation that requires teeth to tackle public servant corruption. The provision has been questioned in judicial forums as violative of the fundamental right of citizens to equality before law. Let us hope that this issue is resolved soon in favour of maintaining the integrity of the public services.

It is against this backdrop that the Anna Team’s demand to bifurcate the CBI, attaching its anti-corruption wing with the proposed Lokpal machinery, should be examined. This is ostensibly in order to remove the organisation from the clutches of the Executive. The rationale is unexceptionable. The practicality of the proposed arrangement is, however, highly debatable.

The CBI does not operate with any watertight compartmentalisation of its numerous wings. No doubt there is a distinct Anti-Corruption Wing functioning at its headquarters. In the field units the distinction is, however, blurred. There is a pooling of resources at all levels when a major case, invariably a sensational conventional crime, is investigated by the CBI at the request of a State government or on the orders of a court. This will no longer be possible if a large chunk of the CBI representing the anti-corruption staff is removed and tagged on to the Lokpal. The current top brass of the organisation are reportedly opposed to such an arrangement, which would deny them the substantial manpower needed for non-anti-corruption work. The CBI’s resources are already quite slender, making it difficult to cope with the nearly 1,000 cases registered by it each year and about 7,000 cases that are on trial.

Following the Vineet Narain judgment (1997) by the Supreme Court, the superintendence of the CBI’s anti-corruption work is with the Central Vigilance Commission (CVC). This is a nominal arrangement which has worked reasonably well, because we have had some non-interfering and mature Central Vigilance Commissioners, and an equally responsible and self-effacing CBI leadership. Under an aggressive and egoistic CVC this arrangement could have become untenable. If, however, you want to disturb this stable state of affairs with a view to yielding to the demand of the Anna Team, the whole process of transition will have to be carefully conceived and worked out.

As one who has headed the CBI, I am totally against any dismemberment of the organisation. That would cause more harm than good to the objective of rooting out corruption. If the Lokpal becomes a reality, the most sensible thing to do would be to transfer the existing authority of superintendence of the CBI from the CVC to the Lokpal. Any other arrangement would result in the creation of two separate investigating agencies, namely, the CBI, and the small unit envisaged for the Lokpal. That would lead to confusion and a clash of functions. Along with such empowerment, the Lokpal could be conferred the authority (that currently vests with the government) to sanction the prosecution of public servants. This can be done by suitably amending Section 197 of the Criminal Procedure Code, 1973 and Section 19 of the Prevention of Corruption Act, 1988. The power enjoyed by the government under Sections 377 and 378 of the CrPC to deny or accord permission to the CBI to go on appeal or prefer a revision petition against the orders of lower courts could also be vested in the Lokpal. It should be remembered that we have been witness to totally political decisions in such matters. Finally, the entire budget allocation for the CBI could be placed at the hands of the Lokpal, so that the CBI enjoys freedom from any tendentious holding up by government of sanctions of money required for its day-to-day running and implementing its long-term projects.

All these suggested moves may be viewed as being too drastic. But, then, without them the CBI will remain tied to the apron strings of the Executive. The former Chief Justice of India, J.S. Verma, must be a disappointed man. His bold judgment in the Vineet Narain case was aimed at insulating the CBI totally from political caprice. If, however, in the public perception this has not materialised, both the organisation’s leadership and the executive will have to bear the cross.

The opportunity that is currently available to improve the image of the CBI through a thoughtful fusing of the agency with the Lokpal should not be frittered away. A lot of magnanimity on the part of the current Executive is called for. At the same time, the role of the media and the citizenry at large in bringing enough pressure for a reform of the system can hardly be overemphasised.

(Dr. R.K. Raghavan is a former director of the Central Bureau of Investigation.)

http://www.thehindu.com/opinion/lead/article2424159.ece

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Lokpal bill and the Prime Minister

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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.