The events that marked the supreme authority of the British regime in India are now being blatantly followed by the United Progressive Alliance government. But time is running out.The term ‘satyagraha’ (satya is truth, and agraha is firmness) was coined by Gandhiji to designate his struggle of ‘passive resistance.’ He initiated it in South Africa during his agitations from 1894 onwards against the oppressive British regime there.
As president of the Congress in 1924, Gandhiji transformed the party into a fighting organisation, and launched several satyagraha agitations to involve people in constructive programmes. The Calcutta Session of the party (in December 1928) gave an ultimatum to the British government that unless Dominion status was given to India by December 31, 1929, the Congress would launch a Civil Disobedience Movement. When no favourable response was received, at midnight on December 31, 1929, the Indian National Congress issued the Declaration of Independence, or Purna Swaraj. The party’s Working Committee gave Gandhiji the responsibility to launch the first act of civil disobedience.
Gandhiji chose to begin with a satyagraha against the Salt Tax imposed by the British. The Salt Act of 1882 gave the British the monopoly on the manufacture of, and collection of tax on, salt. Several leaders including Jawaharlal Nehru, the Congress president at that time, had felt that there were more important issues to be taken up as a part of the demand for full independence. But Gandhiji felt that the salt tax was a richly symbolic choice since salt was something that was used by nearly everyone in India. He believed that the protest would dramatise the demand for Purna Swaraj in a way that would be meaningful to even the least Indian.
On March 2, 1930, Gandhji wrote to Lord Irwin, the Viceroy, offering to stop the march if 11 demands were met, including a reduction in land revenue assessments, an end to the enormous exploitation of the people, and the misuse of public funds by the British. Gandhiji added: “If my letter makes no appeal to your heart, on the eleventh day of this month I shall proceed with such co-workers of the Ashram as I can take, to disregard the provisions of the Salt Laws. As the Independence Movement is essentially for the poorest in the land, the beginning will be made with this evil tax.”
The Viceroy’s reply simply expressed the opinion that Gandhiji was “contemplating a course of action which is clearly bound to involve violation of the law and danger to the public peace.” Gandhiji selected the first batch of 78 satyagrahis, all members of the Sabarmati Ashram. On March 6, Sardar Vallabhbhai Patel set out to make arrangements in the villages and regions through which the Dandi March would pass. On March 7, Sardar Patel was arrested as he was about to address villagers at Kheda; he was sentenced for three months. There was speculation that Gandhiji and the satyagrahis too might be arrested.
On March 12, at 6.30 a.m., Gandhiji started off with his satyagrahis on the Dandi March. After covering 241 miles in 24 days, they reached Dandi on April 5. A large number of journalists from India and abroad had camped there. For them, Gandhiji wrote a short note: “I want world sympathy in this battle of Right against Might — Dandi, M.K. Gandhi.” On the morning of April 12, Gandhiji raised a lump of salt in his hand and declared: “With this, I am shaking the foundation of the British Empire.” He then boiled it in sea water, producing salt illegally. Gandhiji’s satyagraha became a mass satyagraha throughout India. Then, the government resorted to repressive laws. Jawaharlal Nehru was arrested on April 14, and was sentenced to six months’ imprisonment under the Salt Act. On April 28, C. Rajagopalachari was arrested, to be sentenced to six months’ rigorous imprisonment after he and his satyagrahis entered the Coromandel coast at Vedaranyam.
While these leaders were being arrested, Gandhiji was going to other places near Dandi to defy the salt law. The climax of the campaign came when Gandhiji was arrested on May 4, 1930. He was resting at the Karadi Camp three miles from Dandi. At midnight, the District Magistrate, along with several police officers armed with pistols and 30 policemen bearing rifles, entered the room. Gandhiji asked about the charges under which he was being arrested. The Magistrate said it was under Regulation 28 of 1927 which allowed imprisonment without trial. At 1.20 a.m. the police put him in a lorry on the way to Yerwada Jail in Poona.
Gandhiji’s arrest and internment led to hartals and strikes across in India, and there were sympathetic demonstrations all over the world. On May 12, a second batch of satyagrahis led by Abbas Tyabji was arrested. On May 21, Sarojini Naidu and Manilal Gandhi were arrested; some 2,500 satyagrahis being led by them were beaten ruthlessly by 500 policemen commanded by British officers. In this action, four persons were killed; more than 300 persons were hospitalised with severe injuries. Still the satyagrahis observed absolute non-violence and discipline.
Reports on Gandhiji’s campaign during the Dandi March appeared each day in 1,350 newspapers across the world. Time magazine declared him Man of the Year, commenting on his march to the sea “to defy Britain’s salt tax as some New Englanders once defied the British tea tax.” The Press Ordinance promulgated by the Irwin regime caused 67 Indian newspapers and 55 printing presses to be shut down. Over 80,000 Indians were jailed without trial under the Salt Law.
The Salt Satyagraha challenged the very existence of the British regime in India. Sir Charles Innes, who was a provincial Governor, wrote thus about the events of 1930 struggle: “England can hold India only by consent. We cannot rule it by sword.” It is true that the 1930 Salt Satyagraha was not successful with respect to many of its aims and demands. However, it was a historic turning point: thereafter every political move on the part of the Congress was to assert Purna Swaraj as the basic demand.
The events that marked the supreme authority of the British regime in India — and the stupid atrocities committed by it — are now being blatantly followed by the United Progressive Alliance government.
Anna Hazare’s movement has become a symbolic protest against the most corrupted government of free India. At least, Lord Irwin’s government arrested Gandhiji under a primitive Salt Act after the event. The high lords of the UPA government, living in the ivory towers of power and authority, sent the police to arrest a person who was planning to observe a peaceful agitation — without rhyme or reason. It was a mockery of governance to arrest a person in the morning and to order him to go out 12 hours later.
While Gandhiji invited openly the press in India and abroad to support his ‘battle for Right against Might,’ the UPA government, creating crisis after crisis, blames the media for every discord that is created.
Demand for ombudsman
During the Lok Sabha Debates on Demands for Grants of the Ministry of Law on April 3, 1963, Law Minister A.K. Sen said on the demand for an Ombudsman in India that it was a matter for the Prime Minister to decide. However, he observed: “In this country, my own view is that to make it effective, a constitutional provision should be made, as of the Election Commissioner or of the Comptroller and Auditor General. I think that if you really want to set up an effective organisation like Ombudsman with over-riding powers and spreading over the entire field of governmental activity, you will have to give him some constitutional position.”
The Lokpal Bill was introduced in May 1968. When it was considered on August 13, 1969 in the Lok Sabha, S.M. Joshi said: “Prime Minister Jawaharlal Nehru speaking at the AICC at Jaipur on 3 November 1963 said that the system of Ombudsman fascinated him; for the Ombudsman had overall authority to deal with charges even against the Prime Minister and confidence of all.”
As far as I know, that is the only remark on the subject recorded in Parliament Debates. None from the government side contradicted that statement.
While it is desirable to establish Lokpal as a constitutional authority, I feel that the government and the civil society team should come around to some sort of a bill. Hitherto the members of the public who have been supporting Anna Hazare have been non-violent and disciplined. In the event of a critical situation arising, things could turn ugly. After some time, amendments could be brought in to make the legisaltion more effective.
If UPA-II is certain of the support of Parliament and the people to its position on the issue, let it go to the electorate, or conduct a referendum on the specific issue of the Lokpal Bill.
(Era Sezhiyan is an eminent parliamentarian and author.)
Following is the text of the speech of Dr. M. Veerappa Moily, Minister of Law & Justice IN Calcutta on the campaign mode approach to reduce pendency in couts:
“Jawaharlal Nehru, on the afternoon of March 19, 1955, while addressing the members of the Punjab High Court at the inauguration of its new building in Chandigarh, said, “Justice in India should be simple, speedy and cheap.” He remarked that litigation was a disease and it could not be a good thing to allow any disease to spread an then go out in search of doctors.
At a Joint Conference of Chief Ministers and Chief Justices held on August 16, 2009, the Hon’ble Prime Minister observed :
“Judicial review has breached unprecedented frontiers. Yet, amidst such strengths, brilliance and dynamism, India has to suffer the scourge of the world’s largest backlog of cases and timelines, which generate surprise globally and concern at home. The expeditious elimination of this scourge is the biggest challenge for such conferences and should constitute the highest priority for all of us.”
The judiciary realised that one of the drawbacks of the justice delivery system was denial to the common man, of access to justice. This truism was recognised by the judiciary and concern of the Courts in that behalf was reflected in Bihar Legal Support Society vs Chief Justice of India (1986 (4) SCC 767) where the Court said:
“….that the weaker section of Indian Humanity have been deprived of justice for long, long years: they have had no access to justice on account of their poverty, ignorance and illiteracy. They are not aware of the rights and benefits conferred upon them by the Constitution and the law. On account o their socially and economically disadvantageous position they lack the capacity to assert their rights and they do not have the material resources with which to enforce their social and economic entitlements and combat exploitation and injustice.”
To quote from the figures compiled by the Supreme court, a total of 42,17,903 number of cases were pending in the High Courts as on 30th September, 2010 comprising of 33,36,256 Civil Cases and 8,81,647 Criminal cases. In the Subordinate Courts, this figure was 2,79,53,070 comprising 78,56,456 Civil Cases and 2,00,96,614 Criminal cases. It is estimated that in some of the subordinate courts over 30-40 percent of arrears relate to petty cases and out of the total pending cases, 9% of the cases were pending for 10 years and above and 24% cases were pending for 5-10 years in both, High Court and Subordinate Courts. Alarmed with the increasing number of pending cases, a Vision Statement was adopted in the National Consultation on Strengthening Judicary towards Reducing Pendency and Delays held on October 24-25, 2009. The Statement contained a roadmap for improving justice delivery and legal reforms and steps to reduce pendency in Courts from the present 15 years to 3 years by 2012. In the backdrop of this, a campaign mode approach is being launched from today the 1st July, 2011 till 31st December, 2011 to reduce pendency. It is also the endeavour to dispose of long pending cases pertaining to senior citizens, minors, disabled and other marginalized group.
Though the target may not be reached in 2012, ongoing efforts to reduce pendency need to be given greater momentum, in view of the various measures initiated by the Government in recent times and the substantial funding made available.
Government had, in 2007 envisaged a programme under e-Courts Project for computerization of 12000 Courts with a cost of Rs. 441.8 Crores. However, with the pace of time, the Project cost has also increased and the Government has now approved a revised cost of Rs. 935 Crores for the computerization of 12000 Courts by March, 2012 and another 2249 Courts by March, 2014. West Bengal is one of the high performing States wherein we are aiming to complete the connectivity by July-August this year, ahead of the targeted time. Citizen centric services will be available through this project and a national arrears grid will come into being.
The Law Commission of India in their 230th Report have taken a serious note of the ever mounting arrears in the Courts and have suggested the following measures to reverse the trend:
(i) Grant of adjournments must be guided strictly by the provisions of Order 17 of the Civil Procedure Code;
(ii) Many cases are filed on similar points and one judgment can decide a large number of cases. Such cases should be clubbed with the help of technology and used to dispose other such cases on a priority basis; this will substantially reduce the arrears;
(iii) Judges must deliver judgments within a reasonable time and in that matter, the guidelines given by the apex court in the case of Anil Rai v. State of Bihar, (2001) 7 SCC 318 must be scrupulously observed, both in civil and criminal cases;
(iv) Considering the staggering arrears, vacations in the higher judiciary must be curtailed by at least 10 to 15 days and the court working hours should be extended by at least half-an-hour;
(v) Lawyers must curtail prolix and repetitive arguments and should supplement it by written notes. The length of the oral argument in any case should not exceed one hour and thirty minutes, unless the case involved complicated questions of law or interpretation of Constitution;
(vi) Judgments must be clear and decisive and free from ambiguity and should not generate further litigation. Lord Macaulay’s following statement made 150 years ago must be a guiding factor:
“Our principle is simply this –
Uniformity when you can have it,
Diversity when you must have it,
In all cases, Certainty”
(vii) Lawyers must not resort to strike under any circumstances and must follow the decision of the Constitution Bench of the Supreme Court in the case of Harish Uppal (Ex-Capt.) v. Union of India reported in (2003) 2 SCC 45;
(viii) Judges and Lawyers, both have to change their mindsets. Unles the mental barriers to reforms are mellowed, all doses of external remedies are bound to fail.
One must remember Gandhiji’s words “If you want to change anything, you be the change.”
During the campaign for disposal of cases, following steps need to be taken:
(a) All Session Trials are required to be dealt with by Fast Track Courts;
(b) All cases where the offences are compoundable are required to be disposed of on priority basis;
(c) All Magistrates need to be directed to dispose of the cases under Motor Vehicles Act on priority basis;
(d) A special time-bound drive to be donducted to sispose of Summary Trials under Chapter XXI of Cr.PC by the District Judges and Judicial Magistrates;
(e) District Judges and Chief Judicial Magistrates to take up applications for withdrawal of prosecution u/s 321 of Cr.PC on priority basis;
(f) In Courts where criminal appeals have also been given in the cases of criminal revisions pending in any court in excess of twenty five in number to be withdrawn and transferred to courts where such appeals are below twenty five in numbers.
(g) Frame Case Flow Management Rules for the Subordinate Courts. The Rules also provide to put the cases into three different tracks, specifying time limit for each track;
Some of the High Courts have already drawn up their plans for taking up the mission mode approach for reduction in the pendency. Their plan consists of the following measures:
(a) Instructed Magistrates to hold Courts in Jails for disposal of petty cases involving undertrial prisoners;
(b) Constitute Committees at District level involving District Judge, Collector, Superintendents of Police and Jails etc. for discussing the issues relating to criminal justice system;
(c) Notify case flow management rules;
(d) Presiding Officers of Magisterial Courts are ordered to hold Courts on Saturdays, alternatively to dispose of petty cases under the Motor Vehicle Act, NI Act, Municipal laws and other such acts.;
(e) District & Sessions Judges have been directed to rationalize the work load in different Courts;
(f) Set up Morning/Evening/Shift/Holiday Courts;
(g) Organise Mega Lok Adalats in each District and in the High Court during the financial year 2011-12;
(h) Incorporate new Rules for providing faster service of process, hearing on day to day basis, automatic termination of stay after the expiry of two months in cases seeking challenge/stay/transfer the lower court proceedings.
To facilitate the momentum for reduction in pendency, Government of India has made substantial funding. Rs. 5000 Crores have been awarded by the 13th Finance Commission for utilisation during the next 5 years for improving the justice delivery system through setting up of morning/evening/shift courts, Lok Adalats, Mediation, etc. Funds for infrastructural development have increased five fold in the current Budget to Rs. 500 Crores.
The Gram Nyayalayas Act, 2008 was enacted by the Government on 2nd October, 2009 to provide for establishment of Gram Nyayalayas at the grass root level to provide access to justice at the doorsteps of the citizens with a view to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities. A sum of Rs. 150 Crores has been provided in the current financial year for starting the Gram Nyayalayas. States like Madhya Pradesh, Maharashtra, Rajasthan and Orissa have already notified and operationalised them. The Gram Nyayalayas have been envisages to grant relief to the litigants within six months of the registration of cases.
While Government of India is providing sufficient funds for speedy disposal of cases and reduction in the pendency, unless the vacancies are filled up, both in the Higher and Subordinate Judiciary, all efforts being made would not be able to bring about desired fruits. I would, therefore, urge the Chief Justices to embark upon a plan to fill up as many vacancies in the High Court and the Subordinate Courts during this campaign mode approach for reduction in pendency.
I would like this opportunity to thank the Chief Justices and the State Governments in their approach for the Mis sion Mode Programme for Delivery of Justice and Legal Reforms which commenced on 26th January, 2010 with a view to reduce congestion in jails. The leadership rendered by all the Chief Justices for realizing the goal and to take further steps in this regard, resulted in deciding cases of over 7.10 lakhs undertrials till 31.5.2011. This must have brought cheers to as many families also. I hope that the interest and the leadership shown for the cases of the undertrials by the Chief Justices and the State Governments would be carried forward during this campaign for reduction of overall pendency in the Courts which would help in mitigating the miseries of the litigants and their families.”
The 1985 Lokpal Bill destroyed the raison d’etre of the institution of an ombudsman, but all successive governments copied it.
PUBLIC anger was understandably aroused over the gross delay by Parliament in the last 40 years to enact a Lokpal Bill and with the toothless one that the government sponsored. It is not widely known that the delay was aggravated by deception and fraud in 1985. It was, however, emulated by almost all governments that came later. One does not grudge any of those who rushed to Jantar Mantar to grab a few minutes’ fame before TV cameras. Tinsel town, predictably, did not go unrepresented. If the cause had stirred them earlier, their disquiet remained their best preserved secret. One cannot expect Anna Hazare to study – or, for that matter, care for – the nitty-gritty of the law. Some of those who could have known ought to have spoken earlier loud and clear.
The Lokpal Bill was one of the three planks in the movement launched by Jayaprakash Narayan 40 years ago to eradicate corruption. The other two were electoral reforms, designed particularly to end the play of money power, and an effective anti-defection law. JP did not jump into the fray all of a sudden, still less did he resort to theatricals. He studied the problems, deliberated on solutions, and consulted a wide range of persons – lawyers, academics, activists, and so on. He consulted, in particular, the Lokayukta of Maharashtra, Justice S.P. Kotval, who was a former Chief Justice of the Bombay High Court.
JP expounded his views in a seminal article entitled “How to check the canker of corruption” in Everyman’s, a weekly he founded, in the issue of September 1, 1973. It was edited by the late Ajit Bhattacharjea. He recalled the recommendation of the Santhanam Committee on Corruption that “[if] a formal allegation is made by any 10 members of Parliament or a legislature in writing addressed to the Prime Minister or Chief Minister, through the Speakers and Chairmen, the Prime Minister or Chief Minister should consider himself obliged, by convention, to refer the allegations for immediate investigations by a committee…”.
He recalled also the Tamil Nadu Public Men Inquiry Act, 1973. Its definitions of “public man” included the Chief Minister, but its definition of “criminal misconduct” was confined to bribery or illicit acquisitions by abuse of power. M.G. Ramachandran was a member of the Joint Select Committee that considered the Bill. But, of course, as we all know the law completely succeeded in banishing the evil of corruption from Tamil Nadu for all time to come. Corruption simply does not exist in Tamil Nadu today.
JP dwelt, next, on a document that had set the ball rolling. “The Administrative Reforms Committee had recommended in October 1966 the institution of the office of a Lokpal at the Centre and of Lokayukta in the States with wide statutory powers. For reasons that are not clear, the Government of India took over 18 months to make up its mind; and it was only on the 9th May 1968 that the Lokpal Bill was first introduced in Parliament. It was passed by the Lok Sabha in August 1969, but it made no further progress owing perhaps to the power struggle that was brewing within the Congress then and that burst out into the open in September 1969.…
“It was only after Indiraji’s great electoral victory in 1971 that the Lokpal Bill was re-introduced in the new Parliament on 11th August 1971. Many spectacular Acts have been passed since the victory, such as the Constitutional Amendments Acts, but the Lokpal Bill, in its own way more important than the others, has been languishing until today. This and the other delays and omissions… suggest a deplorable lack of any sense of urgency on the part of the Government of India in dealing with a cancerous disease not only of the body politic but of the nation as a whole.”
Unlike some today, JP knew that no Lokpal could wield the magic wand. He wrote: “Let me not create the impression that the appointment of a Lokpal and Lokayuktas will in itself cure the disease of corruption so rampant among Ministers and civil servants. This is not the place to go into the question, but if the Lokpal Bill and the Maharashtra Ayukta Act, which is claimed to be patterned after the former, were carefully scrutinised, it would be discovered that the action of these vital officers is severely limited and hemmed in by restrictive provisions. It is in many ways a case of giving by one hand and taking away by the other… a fertile and well-known source of corruption at the State level, which embraces MLAs, local party functionaries and even Ministers, is the matter of transfers, postings and promotions of subordinate and higher government servants of all departments. Not only is this a source of corruption, but it also occupies most of the time of the Ministers.”
Anna Hazare, in contrast, asserts that the Lokpal Bill “will put the brakes on corruption in the country and help reduce the gap between the poor and the rich” ( The Hindu, April 17). It is a man of such colossal self-assurance and naivety who leads the movement. Kotval’s first Annual Report, for the period from October 25, 1972, to October 24, 1973, lists the crippling restrictions on the Lokayukta’s powers.
The interim report of the Administrative Reforms Commission (ARC) on “Problems of Redress of Citizens’ Grievances” initiated the discussion in the country. The ARC was headed by Morarji Desai. Its emphasis was on the redress of citizens’ grievances for maladministration even if there was no breach of the law. This was based on Scandinavia’s Ombudsman, who is essentially a parliamentary institution rather like India’s Comptroller and Auditor General (CAG). Speaking to the All India Congress Committee (AICC) in Jaipur on November 3, 1963, Prime Minister Jawaharlal Nehru said that while the ombudsman system fascinated him, he felt that in a big country like India, the introduction of such a system was beset with difficulties. But then, Nehru was never enamoured of inquiries into charges of corruption, anyway.
Paragraph 25 of the ARC’s report said: “The following would be the main features of the institutions of Lokpal and Lokayukta: (a) They should be demonstrably independent and impartial. (b) Their investigations and proceedings should be conducted in private and should be informal in character. (c) Their appointment should, as far as possible, be non-political. (d) Their status should compare with the highest judicial functionaries in the country. (e) They should deal with matters in the discretionary field involving acts of injustice, corruption or favouritism. (f) Their proceedings should not be subject to judicial interference and they should have the maximum latitude and powers in obtaining information relevant to their duties. (g) They should not look forward to any benefit or pecuniary advantage from the executive government.”
Appended to the report was a Draft Bill which covered (clause 7) both, “injustice in consequence of maladministration” and favouritism and corruption.
The British Parliamentary Commission Act, 1967, covered maladministration alone [5.5(1)]. The first concrete step for the appointment of an ombudsman institution in India came with the introduction of the Lokpal Bill in the Lok Sabha on May 9, 1968, to implement the recommendations of the ARC. The Bill was referred to a joint committee and was later passed by the Lok Sabha (August 20, 1969). But while it was pending in the Rajya Sabha, the Lok Sabha was dissolved, and the Bill consequently lapsed. The Bill was again introduced in the Lok Sabha on August 11, 1971. It lapsed on the dissolution of that Lok Sabha, the fifth, in 1977.
A Bill on Lokpal was introduced in the sixth Lok Sabha on July 28, 1977. The report of the joint committee, incorporating certain amendments in the Bill, was placed before the Lok Sabha on January 20, 1978. However, before the Bill could be adopted by Parliament, the Lok Sabha was dissolved, in July 1979, and the Bill lapsed. None was considered by the seventh Lok Sabha elected in 1980.
The format of the two Bills of 1971 and 1977 was abandoned and deformities were injected into the Bill introduced in the Lok Sabha on August 26, 1985. It was withdrawn on November 15, 1988, on specious grounds after the Joint Parliamentary Committee (JPC) which debated it had been sent on a merry-go-round in 23 States at government expense “from Shimla to Trivandrum and from Panjim to Port Blair”. But it was this deformed Bill that was adopted as a model by all successive governments with little noise from any of the ones who made noises at Jantar Mantar.
To the Bills of 1971 (based on the first Bill of 1968) and of 1977 we must now turn. The 1971 Bill empowered the Lokpal to inquire into both a “grievance” and an “allegation”. These terms are of crucial importance, for they constitute the raison d’etre of the Lokpal.
A grievance was defined as a claim by a person that he had “sustained injustice or undue hardship in consequences of maladministration”. The term “allegation” was defined to cover not only “corruption or lack of integrity” but also abuse of public office to secure gain or to cause harm or hardship to another. It included, no less, action motivated by “improper” motives. In sum, the Lokpal was empowered to investigate a large variety of improper acts even if they did not constitute corruption under the Prevention of Corruption Act, 1947.
The 1977 Bill altogether omitted from its scope grievances about maladministration since a separate machinery was contemplated to entertain such complaints. However, it widened the area of the Lokpal’s jurisdiction in respect of charges of improper behaviour by defining “misconduct” in the widest terms. To the provisions of the 1971 Bill, in respect of abuse of office and conduct actuated by improper motives, it added two more ingredients which bear recalling.
They are: “if he (the public man) directly or indirectly allows his position as such public man to be taken advantage of by any of his relatives or associates and by reason thereof such relative or associate secures any undue gain or favour to himself or to another person or causes harm or undue hardship to another person (Explanation: for the purposes of this clause, associate in relation to a public man includes any person in whom such public man is interested); or if he fails to act in any case otherwise than in accordance with the norms of integrity and conduct which ought to be followed by the class of public men to which he belongs.” The 1971 Bill excluded the Prime Minister; the 1977 Bill included him.
The 1977 Bill was moved by the Janata Party government, in which Shanti Bhushan was the Law Minister. It was sponsored by Home Minister Charan Singh, who had, as Chief Minister of Uttar Pradesh, got promulgated on October 21, 1967, the Uttar Pradesh Public Men Inquiries Ordinance. It covered “any imputation of misconduct” against a serving or past Minister, legislator and members of local bodies and so on. Under it, the government would have no power to prevent an investigation or inquiry from being held if required by any person; it would have no hand in the selection of judges; and the investigating agency would be completely insulated from the influence of the government.
The scheme provided that any person could make a complaint of misconduct to the Governor against a present or past holder of any of the offices specified. He would be required to file an affidavit in support of the complaint and deposit a security of Rs.1,000. The Governor would then request the Chief Justice of the High Court to nominate a judge to conduct a preliminary scrutiny and eventually order a fuller one by a commission of inquiry. The judge could even order the Chief Investigator to prosecute the offender.
No Bill in recent history has been so badly mauled by the JPC as the Lokpal Bill of 1977 was. It was headed by Shyam Nandan Mishra, who was to win undying fame later as Foreign Minister. The Bill had defined “misconduct” to include, besides corruption, failure to act in any case otherwise than in accordance with the norms of integrity and conduct which ought to be followed by the class of public men to which he belongs”. The JPC considered this to be “too wide and is, therefore, likely to be amenable to different interpretations”.
This was disingenuous. Section 45 of the Army Act of 1950 makes it an offence for any officer, Junior Commissioned Officer or Warrant Officer, to behave “in a manner unbecoming his position and the character expected of him”. Section 35 of the Advocates Act, 1961, renders an advocate liable to disciplinary proceedings if he has been guilty of “professional or other misconduct”. Also, the JPC felt that since MPs “do not exercise any executive powers they should not be treated at par with other public men exercising such powers”. Therefore, the concept of “misconduct” for them should be different. The report had notes of strong dissent. The Bill lapsed on the dissolution of the Lok Sabha in July 1979. Indira Gandhi had no use for any such law when she returned to power in January 1980. Rajiv Gandhi had a go at it. The Bill that his Law Minister, A.K. Sen, a man for all seasons, moved in the Lok Sabha on August 26, 1985, departed radically from the models of 1971 and 1977 and set up, in effect, a parallel quasi-judicial body with its remit confined solely to the criminal offence of bribery under the Indian Penal Code or the Prevention of Corruption Act, 1947.
The Bill introduced in the Lok Sabha by V.P. Singh’s government on December 29, 1989, was an exact replica of the Rajiv Gandhi government’s Bill except for two changes. The Prime Minister was explicitly covered, and reference to the IPC and the Prevention of Corruption Act of 1947 was replaced by reference to the Prevention of Corruption Act, 1988.
This destroys the raison d’etre of the institution. It is designed to help people who have been badly treated even if no law is breached. It is meant also to cover abuse of power and misdemeanours or misconduct even if they do not constitute offences under the law. Since courts exist to try offences under the IPC and the Prevention of Corruption Act of 1988, why set up a parallel body?
The sinister purpose behind this appeared in clause 24 of the 1985 Bill, which read thus: “Notwithstanding anything contained in any other law for the time being in force, where on an inquiry in respect of a complaint against a public functionary the Lokpal or the competent authority has held that any allegations made in the complaint have not been proved or substantiated, no prosecution shall lie on any complaint, report, information or otherwise and no court shall take cognisance of any offence on the basis of the same or substantially the same allegations as in the complaint.” In other words, a Lokpal probe, skilfully initiated, would bar prosecution in the courts altogether.
No such provision existed either in the 1971 Bill or in the 1977 Bill. However, it was faithfully copied in the V.P. Singh government Bill as clause 23.
The 1971 Bill covered both grievances in respect of maladministration and allegations of misconduct. The 1977 Bill was confined to “misconduct” alone, albeit defined in modest terms to cover abuse of power and improprieties as well as corruption.
The 1985 Bill omitted grievances of maladministration as well as charges of misconduct and restricted the jurisdiction severely to matters which are for the courts to decide – criminal offences as defined in the IPC and the Prevention of Corruption Act.
Having thus restricted the Lokpal’s jurisdiction, the 1985 Bill sought to exclude the criminal courts’ jurisdiction as well. And not only if the Lokpal exonerated the Minister but also if, disagreeing with his findings, the Prime Minister chose to exonerate his colleague. For, clause 24 referred to the results of an inquiry by “the Lokpal or the competent authority”. And who was this “competent authority”? Clause 2(a) said it “means the Prime Minister”. The whole thing was a fraud.
Nonetheless, each of the succeeding governments, headed by V.P. Singh, H.D. Deve Gowda, Inder Kumar Gujral and Atal Bihari Vajpayee, sponsored and supported in Parliament a Lokpal Bill which it very well knew to be a caricature of the institution of the ombudsman as it is known in the world over and as was known in this country before 1985. A monstrous fraud was perpetrated on the country in 1985 and perpetuated thereafter.
An ombudsman does not preside over a parallel judiciary to try offences under the Prevention of Corruption Act, 1988. The courts of law take care of that. To confer such a jurisdiction on the Lokpal and oust that of the courts is to confer immunity from the law to men in high office. For, unlike the courts, the Lokpal has no power to award punishment at all. It can do no more than report to a designated superior of the delinquent – the Prime Minister vis-a-vis Union Ministers. Worse still is to confine its jurisdiction to trial of offences and exclude from it just those kinds of cases for which the institution of an ombudsman has been devised and set up for decades the world over; namely, acts which do not constitute offences in law and for which the courts can provide no redress. Maladministration and abuse of power are classic instances of such acts.
The Bills of September 10, 1996 (H.D. Deve Gowda regime), of July 23, 1998 (A.B. Vajpayee regime), and of July 9, 2001 (A.B. Vajpayee regime) all studiously copied Rajiv Gandhi’s (or A.K. Sen’s) Bill of 1985 and confined the Lokpal’s remit to corruption as defined in the Prevention of Corruption Act of 1988. In each case an anaemic Lokpal could do no more than report to the Prime Minister, while ousting the court’s jurisdiction effectively by a parallel judiciary of sorts. L.K. Advani, needless to mention, was Deputy Prime Minister in the Vajpayee government.
In glaring contrast, a mere executive order of December 20, 1969, made by the Government of Kerala to set up “an Interim Machinery to enquire into allegations against public men” proved effective. It defined “misconduct” to include any act which is actuated “by improper or corrupt motives”. Judges who sat on commissions of inquiry defined the term “azhimathi” to cover a whole range of improprieties. (The Karnataka Lokayukta Act, 1984, also included in the Lokayukta’s remit the failure “to act in accordance with the norms of integrity and conduct which ought to be followed by public servants of the class to which he belongs” [S 2 (2) (d)].
Kerala’s Order of 1969 was superseded by the Kerala Public Men (Prevention of Corruption) Act, 1983, the Kerala Public Men’s Corruption (Investigations and Inquiries) Act 1987, and finally by the Kerala Lok Ayukta Act, 1999. It covers both lack of integrity and “injustice”. This Lokayukta has the power to order public servants, including the Chief Minister, to vacate office (Section 11) and to initiate a prosecution (Section 12).
If a Lokpal is to be worthwhile, the selected person must (1) have jurisdiction in respect of both maladministration and misconduct; (2) be appointed by a procedure that excludes executive influence and control. The Chief Justice of India and the Leader of the Opposition in the Lok Sabha must be on the selection panel along with the Prime Minister; (3) be a former judge of the Supreme Court or a former Chief Justice of a High Court; (4) have jurisdiction over a wide range of “public men” – the Prime Minister, MPs, senior civil servants, heads of public corporations and national universities, and so on; (5) have an independent investigating agency of his own and not be dependent on the Central Bureau of Investigation; (6) have the power to launch prosecutions himself and order vacating of office; (7) be easily accessible; (8) have a juridical personality. It would be best to amend the Constitution to give him constitutional status comparable to that of the CAG.