Political Career for Indian Youth-Jan Lokpal bill -Coverage

The Jan Lokpal Bill - Issues for Consideration and Recommendations for improvement -Coverage

Coverage

Issue 1: Shedding the excessive burden – grievance redress, citizen charters and assets statement verification:

Until 2010 the debate about the establishment of a Lokpal at the level of the Centre focused entirely on the creation of an institutional mechanism that would investigate the political establishment for corruption-related offences. This included the Prime Minister, all Ministers in the Union Government and Members of Parliament. This indeed was the focus of recommendations made by the National Commission to Review the Working of the Constitution (NCRWC) and the Second Administrative Reforms Commission. Consequently the Draft Lokpal Bill 2010 that was under the examination of the Group of Ministers was applicable to acts of corruption committed by members of the political executive and Parliament. However the Jan Lokpal Bill seeks to expand the scope and ambit of the proposed statute to include matters such as citizen charters, grievance redress, and verification of statements of assets and liabilities furnished by electoral candidates to the Election Commission within the job description of the proposed Lokpal. While there is no gainsaying the importance of these concerns, placing such a heavy burden on the Lokpal will only make it collapse under its own weight.

The sheer burden of Vigilance administration contemplated under Clause 22 will divert the energies and attention of the Lokpal from corruption related matters. Giving effect to this clause will require appointment of Chief Vigilance Officers (CVOs) in all public authorities who will be compelled to work full time only on grievance redress if the experience of the implementation of the Right to Information Act is taken into account. The volume of grievances will only increase day by day given the popularity of the term ‘Lokpal’. This amounts to creation of thousands of new posts, imposing a burden on the exchequer in addition to the financial implications of establishing the institution of the Lokpal. Even though the Lokpal may not handle any vigilance matter the sheer burden of monitoring the performance of CVOs will require a bureaucracy of considerable size. Further without adequate checks and balances the grievance redress officers can become satraps in their public authorities causing more hardship for the common citizen. This is also a major cause for concern as the Draft Bill does not address this issue.

Citizen charters are an important facet of executive functions and are unique to every public authority providing specific services to their clientele. The Lokpal may not have adequate domain expertise to direct public authorities to alter their citizen charters. Acquiring detailed knowledge of the services provided by a public authority under scrutiny and comparing it against norms observed by other similarly placed public authorities is time consuming and will divert attention and resources from the main objective of the Lokpal- namely tackling corruption. Similarly ascertaining the veracity of the statements of assets and liabilities filed by electoral candidates will also require a large number of staff and resources which can be better spent on handling corruption-related matters. Such verification is better left to the Income Tax Department as is the current practice.

If Lokayuktas in the States are also brought under the purview of this law then a serious question about the competence of Parliament to make laws for grievance redress in the States will arise. In our opinion while it is within the competence of Parliament to pass anti-corruption laws that are applicable to the States as well, the Constitution does not vest Parliament with a similar competence to make laws for handling grievances in respect of services provided by the State Governments. Such a law is likely to violate the scheme of division of powers between the States and the Union which is a basic feature of the Constitution.

Recommendation:
The primary purpose of the Lokpal must be to handle complaints of corruption against public servants. Issues such as citizen charters, grievance redress and asset statement verification may be dropped from the Draft Bill. There is a need for more widespread debate about the manner in which such issues must be dealt with.

Issue 2: Exclude the judiciary from the scope of the Lokpal:

The Draft Bill seeks to bring all judges of the Supreme Court of India and the High Courts under the jurisdiction of the proposed Lokpal. The office of the Chairperson of the Lokpal will deal with complaints against judges exclusively and refer it to a member for screening. A full bench of the Lokpal (consisting of seven Members of whom three must have a background in law) will examine the findings of the screening exercise and by majority grant permission for registering a case. The decision to initiate prosecution will be taken by a full bench (seven Members) where a majority of the Members must have a background in law.

It must be pointed out that these provisions stand in violation of the law laid down by the Hon’ble Supreme Court of India in the matter of K. Veeraswami v Union of India and Ors. [JT 1991(3) SC198]. The constitutional bench with a majority of 4:1 laid down the principle as to how a matter of corruption involving a judge of the High Court or the Apex Court is to be dealt with. Justice B C Ray ruled as follows:
“In order to adequately protect a Judge from frivolous prosecution and unnecessary harassment the President will consult the Chief Justice of India who will consider all the materials placed before him and tender his advice to the President for giving sanction to launch prosecution or for filing FIR against the Judge concerned after being satisfied in the matter.” [emphasis supplied]
By ignoring this landmark decision the Draft Bill encroaches on the independence of the judiciary which has been recognised as a basic feature of the Constitution in two cases ( S P Gupta v Union of India, AIR 1982 SC149 and Shri Kumar Padma Prasad v Union of India JT 1992(2) SC247).
Further the Draft Bill ignores current efforts to tackle corruption in the superior judiciary. The Judicial Standards and Accountability Bill, 2010 was introduced in the Lok Sabha with the express purpose of establishing mechanisms such as the National Judicial Oversight Committee, Complaints Scrutiny Panels and investigation committees in the Supreme Court and all High Courts to deal with complaints from individuals and references from Parliament against judges about incapacity or misbehaviour including corruption. The National Judicial Oversight Committee is to have two non-judicial Members one of whom may be an eminent person unassociated with the judiciary and nominated by the President. This Bill could be improved upon if any shortcomings are perceived. There is no need to subject judges to a second statute for similar purposes.

Recommendation:
Clauses 2(11) and 19B may be deleted in order to exclude the judiciary from the purview of the Lokpal. The provisions of The Judicial Standards and Accountability Bill, 2010 may be strengthened where necessary.

Issue 3: Special Procedure for Prime Ministers:

The Draft Bill seeks to bring the Prime Minister under the purview of the proposed Lokpal. The Government draft also seeks to cover the Prime Minister except for matters connected with national security, public order, foreign relations and national defence. However the NCRWC and the Second Administrative Reforms Commission have opposed this idea on the ground that the Prime Minister being the head of Government is accountable to Parliament. If the Prime Minister were made subject to the jurisdiction of the Lokpal it would erode the viability of the Government and jeopardize Parliament’s supremacy.

However as the Prime Minister is also a public servant covered by the Prevention of Corruption Act, there is no reason why a credible mechanism for inquiring into complaints of corruption cannot be evolved without upsetting the constitutional scheme. The proposed Lokpal may be empowered to conduct an inquiry to garner all facts and materials relating to the complaint made against the Prime Minister. An inquiry does not amount to investigation, so there will be no need to interrogate the Prime Minister at this stage. If the inquiry turns up sufficient material supporting the complaint, the Lokpal may forward its findings with all material facts and documents to presiding officers of Parliament with a request to set up a committee to examine the complaint and the materials gathered for taking further action. This mechanism would ensure that the complaint against the Prime Minister is initially inquired into by an independent agency and examined further to the point of logical action by Parliament. This would preserve the sanctity of constitutional arrangements as well.

Recommendation:
The Draft Bill may be amended to provide for a special procedure for dealing with complaints of corruption received against the Prime Minister without compromising the constitutional arrangements.

Issue 4: Jurisdiction – petty or big-ticket corruption

The Draft Bill empowers the proposed Lokpal to receive and inquire or investigate allegations of corruption against all public servants and allegations of misconduct against all government servants. Theoretically, the Lokpal will be duty bound to investigate such complaints against officials and officers of all ranks from the lowest level of an office assistant to the Prime Minister. There is a danger of the Lokpal being flooded by complaints of petty corruption against the lower rungs of the bureaucracy leaving little time to focus on allegations of big ticket corruption. The purpose of the Lokpal as envisaged by bodies such as the Second Administrative Reforms Commission and the NCRWC is to investigate corruption committed by senior functionaries especially, ministers. By recommending the winding up of the Central Vigilance Commission and absorption of the anti-corruption branch of the Delhi Special Police Establishment, the Draft Bill seeks to create a single institution to tackle corruption at all levels of the Central Government and in public sector enterprises. This is undesirable because the sheer workload will not allow the proposed Lokpal to focus its energies on tackling corruption at the higher levels of government. The Draft Bill also seeks to bring cooperative societies within the ambit of the Lokpal. This will also cause a flood of complaints to the Lokpal rendering it ineffective.


Recommendation:
The Draft Bill may be amended to include a threshold for the kinds of cases that the proposed Lokpal will inquire or investigate. The threshold could be based on monetary value or the specific levels in the bureaucratic hierarchy or some other criteria. Cooperative societies may be dropped from the ambit of the Lokpal.

Issue 5: Whistleblower protection:

The Draft Bill seeks to provide a mechanism for protecting whistleblowers including citizens who are threatened or attacked because of making information requests under the RTI Act. The Draft Bill does not take into account the existence of the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill (Whistleblower Bill) introduced in Parliament in 2010. The purpose of this Bill is to enable people, especially public servants, to make protected disclosures of wrong doing including corruption in public authorities. This legislation makes the Central Vigilance Commission the sole authority to receive and inquire into complaints of improprieties and wrong doing as defined in it. It also provides for a mechanism for protecting the whistleblower from physical and/or professional harm. Even though the Whistleblower Bill does not meet international standards it contains more elaborate provisions than those relating to whistleblowers found in the Draft Bill. It is advisable to align the Draft Bill with the provisions of the Whistleblower Bill after strengthening the latter instead of duplicating the protection mechanisms.

Recommendation:
The provisions relating to whistleblower protection may be dropped from the Draft Bill. Instead the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill pending in Parliament may be strengthened further and made to serve the purposes of the Lokpal legislation