Lokpal legislation and statutory procedures

JAN LOKPAL CAMPAIGN

JAN LOKPAL CAMPAIGN

ERA SEZHIYAN  IN THE HINDU

A resolution passed in Parliament may have limitations when it comes to implementation

In the context of the ongoing moves on the Lokpal Bill issue, it has to be noted that a resolution of either House of Parliament, even when it is passed by a division, has limitations with regard to implementation by government. There are three types of resolutions: one is the kind that, when passed, the government will have to implement statutorily; the second type can control the procedure of the House; the third type may be an expression of the opinion of the House.

For instance, when a Bill on appropriation of grants is passed by the Lok Sabha and considered by the Rajya Sabha, it gives statutory authority to the government to withdraw amounts from the Consolidated Fund to meet the specific purpose for which Parliament makes the grant.

Article 123 of the Constitution provides that if both Houses pass a resolution disapproving an Ordinance promulgated by the President, it shall be mandatory to cease to operate it. Under Article 356, the Proclamation of President’s Rule issued for a State should be approved by Parliament through a resolution; otherwise it will cease to operate. Resolutions moved by private members are generally meant to express an opinion; even if passed it is not mandatory that the government implements it.

About the impact of a resolution passed by the UK Parliament, Erskine May states: “Every question, when agreed to, assumes the form of either an order or a resolution of the House… By its resolution, the House declares its own opinions and purposes.”

In Law of the Constitution, Dicey says: “On this basis, the resolutions of a House may be divided into the following three categories: (1) Resolutions which have statutory effect, (2) Resolutions which the House passes to control its own proceedings and (3) Resolutions which are mere expressions of opinion by the House.”

Rule 171 of Lok Sabha: A resolution may be in the form of a declaration of opinion, or a recommendation; or may be in the form so as to record either approval or disapproval by the House of an act or policy of government, or convey a message; or commend, urge or request an action; or call attention to a matter or situation for consideration by government; or in such other form as the Speaker may consider appropriate.

Practice and Procedure of Parliament by Kaul & Shakdher states: “Resolutions may be broadly divided into three categories:

“Resolutions which are mere expression of opinion of the House: Since the purpose of such a resolution is merely to obtain an expression of opinion of the House, the Government is not bound, as convention has it, to give effect to opinions expressed in these resolutions. It entirely rests on the discretion of the Government whether or not to take action suggested in such resolutions.

“Resolutions which have statutory effect: The notice of a statutory resolution is given in pursuance of a provision in the Constitution or an act of Parliament. Such a resolution, if adopted, is binding on the Government and has the force of law.

“Resolutions which the House passes in the matter of control over its own procedure: The House by such a resolution evolves sometimes its own procedure to meet a situation not specifically provided for its Rules. It has the force of law, but its validity cannot be questioned in a court of law.”

In Parliament, Ivor Jennings writes: “Private Members’ Motions then are part of the technique of propaganda. They enable the opinion of the House to be taken. The ‘opinion’ need not be representative for the attendance may be small.”

On August 10, 1978, N.K.P. Salve moved a motion in the Rajya Sabha for the appointment of two Commissions of Inquiry to look into corruption charges against the family members of the Prime Minister and the former Home Minister. This writer opposed it, for under the Commissions of Inquiry Act a motion passed by the Lok Sabha has statutory effect, and the government has to implement it. A motion passed in the Rajya Sabha was only a recommendation to be considered by the government at its discretion. However, the Rajya Sabha adopted the motion 104 to 78.

Over the next few days, the Opposition demanded the early appointment of a House committee or the Commissions of Inquiry. The Rajya Sabha Chairman asked this writer for a note, which was submitted on August 12. On August 17, Chairman B.D. Jatti gave his ruling: “Two courses, therefore, seem to be open to the government, namely, either they should seek the guidance and advice from a committee of the members of Rajya Sabha, or forthwith appoint two separate Commissions of Inquiry. I am of the opinion that in terms of the Motion, the question of appointment of a Committee by me would depend on the indication from the Government as to which one of the two alternatives in the Motion is acceptable to the government.”

L.K. Advani, the Leader of the Rajya Sabha, accepted the ruling and promised that the government would carefully consider the recommendations of the motion. There the matter ended.

Regarding a statute for the establishment of the Lokpal, the government prepared on August 4, 2011 ‘The Lok Pal Bill, 2011′ according to the Rules of Procedure and practices, and along with the President’s Recommendation under Article 117(1) and (3). This Bill was referred to the Parliamentary Standing Committee on August 8; it was required to send its report in three months. The committee advertised on August 20 inviting views/suggestions within 15 days. These have to be sent by September 4, and the committee may examine them and submit a report by November 3.

However, the agitation by Anna Hazare and the civil society team has created an urgent and critical situation. It may not be possible for the government to send on the Jan Lokpal bill or the bills propounded by others. Unless the government has made clear and satisfactory decisions on the points raised by the civil society team, the situation could go out of control.

Of the 10 Lokpal Bills introduced so far at the Centre, five were by Congress governments and the rest by non-Congress governments. The major difference among them was the exclusion of the Prime Minister by the former and the inclusion by the latter in the ambit of the Lokpal Bill. But none of them demands a constitutional amendment for the establishment of a Lokpal. A constitution amendment may require still more time; the legislatures of not less than half the States would have to ratify it, as required under the Article 368(2). This will take months.

Karnataka example

If there is a will, there is a way to enact an effective Lokpal Act even under the statutory procedures available. The Karnataka Lokayukta Act of 1985 enacted by the Ramakrishna Hegde government provided for a Lokayukta to investigate and report on allegations or grievances relating to the conduct of public servants including the Chief Minister; Ministers and members of the legislature; all officers of the State government; chairman, vice-chairman of local authorities, statutory bodies or corporations established by or under any law of the State legislature, including cooperative societies, persons in the service of local authorities, corporations owned or controlled by the State government, a company in which not less than 50 per cent of the shares are held by the State government, societies registered under the State Registration Act, cooperative societies and universities established by or under any law of the legislature.

Where, after investigation into a complaint, the Lokayukta considers that the allegation against a public servant is prima facie true and makes a declaration to that effect, and the declaration is accepted by the competent authority, the public servant concerned, if he is a Chief Minister or a Minister or a member of State legislature, shall resign his office. If he is any other non-official, he shall be deemed to have vacated his office, and, if an official, shall be deemed to be under suspension, from the date of acceptance of the declaration.

If, after investigation, the Lokayukta is satisfied that the public servant has committed a criminal offence, he may initiate prosecution without reference to any other authority. Any prior sanction required under any law shall be deemed to have been granted.

Any effective government in a functioning democracy worth its name should anticipate a problem before it becomes a crisis and solve a crisis before it lands the government and the country in a catastrophe.

(The author is an eminent parliamentarian.)

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Ombudsman for Legal Sector

A representation of the Lion Capital of Ashoka...

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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, Shri Salman 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.

MORE EQUAL THAN MOST

Indira Gandhi

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Many Indian politicians still like authoritarian democracy

ASHOK MITRA IN THE TELEGRAPH

A dose of cynicism is in order. The corporate sector already occupies all the commanding heights in the polity. Hullabaloo over the contents of the lok pal bill cannot but be only a divertissement: let controversy rage over the modalities of fighting corruption in high places, the interregnum will provide enough breathing space to plan new strategies to cover up shenanigans-by-courtesy-of-neo-liberalism. Most of the Supreme Court judges smitten by the activism bug are also bound to retire meanwhile. Once the judicial passion gets spent, anti-graft crusaders too will return to their cloister. Calm, too, will automatically return to the nation’s capital which is the centre of the Indian universe.

The debate on the modalities of tackling corruption in high places has nonetheless yielded one useful by-product: we now have a clue to how some minds that matter are working. A major issue apparently dividing the government and the motley crowd of so-styled civil society warriors is whether the prime minister should or should not come under the purview of the lok pal’s surveillance. Prima facie, there is no reason why he/she should not. He/she may be primus inter pares, but is still a minister; if other ministers come under the lok pal’s scanner, the prime minister too ought to. The government and the party that heads the government coalition are not willing to go along; they abhor the idea of treating the prime minister on a par with other ministers. As points and counterpoints fly across the television channels, the heavyweight of a cabinet minister who has emerged as the principal spokesperson on behalf of the government shot a rhetorical question: is there any country in the world where its prime minister has ever been charged with corruption? The minister was confident there was none. It is therefore, he concluded, ridiculous — and demeaning to the country by implication — to introduce any legal provision to prosecute our prime minister on grounds of corruption; the lok pal must not be allowed to embark on a fishing expedition to find out whether the prime minister has or has not deviated, in the conduct of public affairs, from the straight and narrow path.

Rhetoric deserves counter-rhetoric. Can the official super spokesperson cite the instance of any other country where a prime minister admits that he had been presiding over a bunch of ministers some of whom were corrupt to the core but he/she will not take responsibility for their misdeeds and feels no reason to resign? Do not certain other facts stare at our face too? In Japan, it is standard political practice for the prime minister to seek forgiveness of the people for any major or minor dereliction of duty on the part of the government or any individual minister and vacate office without further ado. In Britain, Harold Macmillan stepped down as prime minister owning responsibility for some sexual dalliance on the part of one of his junior colleagues. Once the convention is firmly established that under circumstances which embarrass the regime the prime minister resigns, no occasion arises to prosecute him/ her. The person elected president is both head of state and head of government in the United States of America. In not too distant a past, one such president, Richard Nixon, had to resign from his august office on the eve of his impeachment in accordance with procedures spelled in the nation’s constitution.

Caesar’s spouse may be above suspicion, but Caesar himself is not in most parts of what is known as the democratic world. The obtuseness embedded in the argument that the prime minister is no ordinary mortal, therefore, provides food for some thought. Democracy means freedom of choice. Is that freedom being availed of to contribute a new definition of democracy itself? Perhaps the intent is to drop the hint that if there could be such a phenomenon as popular democracy or guided democracy, why not accept the notion of authoritarian or totalitarian — or, for the matter, dynastic — as well; others might abide the question, but the prime minister — conceivably belonging to only one particular family — would be free, the ordinary laws of the land would not apply to him/her. Since, exception supposedly proves the rule, the exceptional treatment of the office and person of prime minister would confirm India’s standing as the world’s largest democracy.

Much of this, though, is not original thought and has a distinguished antecedent. Let there be a flashback to the year 1975. Indira Gandhi was peeved no end by that silly judgment of the up-to-no-good Allahabad High Court holding her guilty of electoral malpractices. The judgment, how annoying, imperilled her tenure as prime minister. Poor she; in the event, declaring an Emergency alongside suspension of the fundamental rights granted by the Constitution was the only alternative left to her. It is however an ill wind that does not yield somebody at least some good. The congenial ambience of the Emergency made it easy for Indira Gandhi to ram through a constitutional amendment. The Constitution (39th Amendment) Act of 1975 introduced a special proviso concerning the election to Parliament of the prime minister and the Speaker of the Lok Sabha; no court in the country was permitted to question, on any ground whatsoever, the validity of the election of these two eminences. The amendment was made retroactive, thereby rendering the Allahabad High Court’s verdict on Indira Gandhi’s election ultra vires of the Constitution; it was like waving a magic wand. Another point is also worth noticing. An authoritarian approach to things does not amount to abandoning a sense of aesthetics: it was a bit inelegant to treat the prime minister as a sui generis case; to keep her/him company, the Speaker of the Lok Sabha was tagged on to constitute the duet the validity of whose election to Parliament would be beyond the reach of the legal process.

Indira Gandhi’s experiment with totalitarian democracy met a sorry end in 1977. The Janata regime that followed could at least take time out from its unending internal squabbles to pilot the Constitution (44th Amendment) Act of 1978 which got rid of the 39th amendment; the prime minister (and the Speaker of the Lok Sabha) re-entered the earth and were once more at par with one billion or thereabouts of other citizens who make up the nation.

It is given to human beings to learn from experience. Since democracy grants freedom of choice, it is equally the privilege of human beings, or any collection of human beings, not to learn from experience. Maybe decision-makers in the country’s largest political party have not ever been able to forsake their passion for authoritarian democracy. Was it not sheer bliss to be ruling during those two heavenly years between 1975 and 1977? The wishes and whimsies of an urchin from you-know-which family had the imprimatur of law, thousands of recalcitrant and potentially recalcitrant elements could be locked up without trial in prison, encounter deaths could take care of cheeky, restless youth, the wretched inmates of ramshackle slums besmirching the texture of metropolitan beauty could be loaded like cattle in trucks and dumped in a wilderness fifty or a hundred kilometres away.

Possibly the memory of that paradise still haunts and the blueprint of a new edition of authoritarian democracy is firmly etched on the subconscious. The occasion of the ersatz debate over the nitty-gritty of the lok pal bill is being put to excellent use. It is a sort of a preview of the re-touched dream: the prime minister is no ordinary citizen, she/he is the be-all and end-all of Indian democracy, not just holier than holy, but the holiest; how can anyone even dare to suggest that he/she should be the target of dirty investigation for this or that piffling alleged misdemeanour while in the pursuit of official duties?

If the incumbent prime minister assumes that such solicitude is to protect his dignity and honour, he was born yesterday

http://www.telegraphindia.com/1110701/jsp/opinion/story_14163144.jsp

‘A gigantic institution that draws powers from a statute based on questionable principles’

Efforts to establish an Ombudsman-type institution in India started with the recommendation of the first Administrative Reforms Commission under the chairmanships of the late Shri Morarji Desai and the late Shri K. Hanumanthaiah during the 1970s. Bills were introduced in Parliament more than once, but we have not yet been able to bring about a consensus of views on what an Ombudsman-type institution, namely the Lokpal, should look like and the kinds of powers that should be vested in it. Even as the government is working on a draft bill, some civil society actors have come up with a draft Jan Lokpal bill demanding the establishment of a strong Lokpal that will tackle both corruption and maladministration that plague the government at various levels. Citizens can make complaints to the Lokpal directly about any act or omission that constitutes an offence under the Prevention of Corruption Act, 1988, against any public servant, including the prime minister, ministers of various ranks, members of Parliament, all government servants and employees of statutory corporations. Powers of inquiry, investigation, prosecution, oversight, enforcement of orders, tapping phones and intercepting messages, confiscating property, etc are all proposed to be vested on a single authority, namely the Lokpal. Such privileging of a single authority with wide-ranging powers and functions is unparalleled in the country’s legislative history and is perhaps unwise. An examination of the provisions contained in the Jan Lokpal bill 2011 (version 2.2) gives rise to the following major areas of concern:

Combining investigation and prosecution powers in the Lokpal: The combination of powers to investigate and prosecute public servants for offences of corruption goes against the basic principle of the separation of these two functions in the criminal justice system, which was accomplished as far back as in 1973. A prosecutor is an agent of justice and an officer of the court. He or she must apply an unbiased and independent mind to the case prepared by the investigating officer. Such independence may not be possible if the prosecution agency is under the overall control of the Lokpal.

 Vagueness of definitions: Certain terms as defined in the draft bill are vague. For example, “vigilance angle” includes within its ambit acts such as “exercise of discretion in excess”, “indulging in discrimination through one’s conduct directly or indirectly”. These are loose expressions of noble intent, but can cause havoc during application and judicial interpretations. Similarly, a whistleblower is defined as a person who faces a threat of professional or physical harm, or has been actually harmed for making a complaint to the Lokpal, or for making a request for information under the Right to Information Act, 2005. This is more restrictive than the definition of a whistleblower contained in the 2010 bill pending in Parliament. The mere making of a public interest disclosure of wrongdoing is adequate for the purpose of being identified as a whistleblower under that bill.

Selection committee: The draft bill requires that two of the youngest judges of the Supreme Court and two youngest chief justices of high courts to be part of the selection committee for the Lokpal. While the principle of length of service… which itself contributes to experience and knowledge guides the idea of having the seniormost judges on such panels, the underlying principle of choosing the youngest judges is not very clear. What criteria will be applied in this regard — actual age of the judge, or the length of service?

 Appointment of the Lokpal: Clause 8(11) gives a high degree of finality to the list of names recommended by the selection committee for filling up vacancies in the Lokpal. The president is required to only sign on the dotted line. The president must be allowed the space to satisfy himself/herself that the procedure for selection as laid down by the law has indeed been observed and the best candidates have been selected through due process. If these criteria are not fulfilled, the president must have the power to request the committee to reconsider its recommendations. The inclusion of the outgoing members of the Lokpal in the committee will needlessly inflate its size with no major purpose. The outgoing members may instead be consulted informally before the final list of candidates is prepared.

Videographing the selection process: The draft bill envisages the videographing of the entire selection process and making it public. While interviews of candidates may be made public, the committee must be allowed the space to deliberate in confidence while making a final decision. The outcome of the discussions and the reasons for selection may indeed be made public but if the deliberations are also made public, the candour and freeness of the discussions are likely to be affected adversely.

 Lokpal fund: The draft bill envisages the creation of a fund into which all penalties and fines imposed by the Lokpal and 10 per cent of the monies confiscated will be deposited. The Lokpal will have absolute discretion to use these funds to enhance or upgrade the infrastructure of the Lokpal. This provision ignores the principle of legislative oversight over the manner of spending of funds collected from the public. Insulating large sums of money from parliamentary scrutiny does not lead to stronger mechanisms of accountability.

 Independence of the judiciary: The draft bill in a few places encroaches upon the constitutionally guaranteed independence of the Supreme Court. The provision relating to removal places several restrictions on the inherent powers of the Supreme Court to determine the number of justices who will hear a case or even dismiss a case in liminae.

Further, the draft bill brings all justices of the Supreme Court and the high courts under the ambit of the Lokpal. Offences of corruption are better handled by a separate body such as a national judicial accountability commission. Clauses 17 and 18 of the draft bill give powers of appeal to the Lokpal over all the actions of the justices of the Supreme Court and the high courts. A mere allegation of mala fide against a judicial body is adequate for the Lokpal to start an inquiry or investigation into the actions of judges. This is entirely undesirable as it violates the principle of independence of the judiciary which enables judges to act without fear.

 Power of review over executive decisions: Clauses 8 and 17 turn the Lokpal into a civil court that will reverse the decisions of the executive such as grant of licences, permits, authorisations and even blacklist companies and contractors. This is not the job of an Ombudsman-type institution. Instead, the Lokpal must make recommendations to the public authority to take such actions and any failure to comply with must be dealt with by the Lokpal by approaching the appropriate court for issue of an enforcement decree.

 Transparency must be balanced with other public interests: It is laudable that the draft bill places a lot of emphasis on transparency in the proceedings of the Lokpal. However, the draft bill fails to balance this public interest with other important public interests such as the right to privacy and reputation. In our society, it is not uncommon for persons accused of offences to be stigmatised even though they may eventually be acquitted by a court of law. It is important to ensure adequate balance between the need for transparency and the need to protect privacy and reputation of individuals.

 Extraordinary powers of the Lokpal: The draft bill seeks to vest enormous powers in the Lokpal such as telephone tapping, issue of letters rogatory, confiscation of property for making false assets statements, etc. While these powers may be necessary for tackling corruption, there must be adequate checks and balances to prevent their misuse. Lord Acton famously said: “All power tends to corrupt; absolute power corrupts absolutely.” The draft bill does not provide for appeals against most actions and orders of the Lokpal. This is a major lacuna. Letter rogatory unless issued by an independent court may not be valid in external jurisdictions. The efforts to tackle corruption in extra-territorial jurisdictions may come to naught merely because of this provision. The draft bill also lacks procedural safeguards save the requirement of giving a hearing to a public servant prior to confiscation of property.

The Lokpal in effect will be the investigator, prosecutor and enforcer of its will. When coupled with the powers to punish for contempt and in the absence of an appellate body the draft bill in fact creates a gigantic institution that draws its powers from a statute that is based on questionable principles.

 Extracted from notes presented at a public consultation on the Lokpal Bill at the Nehru Memorial Museum and Library on April 16.  Justice Shah retired from the Delhi high court in 2010. Nayak is co-convenor of the National Campaign for People’s RTI