Political Career for Indian Youth-Jan Lokpal bill -theme 3

Issues for Consideration and Recommendations for Improvement

Theme 3- Functions

Issue 1: Encroachment of the domain of the judiciary

The Draft Bill encroaches upon the domain of the judiciary in four contexts.

a) The first context is the Clause relating to the procedure for removal of the Chairperson or a Member of the proposed Lokpal. Clause 7(3)(b) makes it compulsory for the Supreme Court of India to admit and hear a petition seeking removal. It also bars the Apex Court from dismissing such a petition in limine. Further its requires that a panel of five seniormost judges decide the composition of a bench that will hear such petitions. These are clear instances of encroachment on the powers of the Apex Court. The power to dismiss a petition in limine is an inseparable facet of the independence of the judiciary guaranteed by the Constitution and cannot be taken away by an ordinary statute. Further under Order VII of the Supreme Court Rules, 1966 the Chief Justice is the designated authority for nominating judges to a bench that will hear any cause, appeal or matter. These Rules have been made by virtue of the powers delegated to the Supreme Court under Article 145 of the Constitution. These Rules cannot be overridden by an ordinary statute. However these anomalies will disappear if our earlier recommendation about amending the removal procedure along the lines of the procedure for removal of the members of the Central Vigilance Commission is acted upon.

b) The second instance of encroachment occurs in Clause 13B where the Lokpal is sought to be empowered to issue letters rogatory. Letters rogatory are generally understood as requests for some form of judicial assistance made by one court to another court operating in a foreign jurisdiction. These powers are exercised for the purpose of obtaining evidence from a witness or disclosure of documents that are available in another country. Matters relating to issue of letters rogatory in criminal cases are governed by Section 166A of the Criminal Procedure Code, 1973. Such request for judicial assistance can be issued only by a criminal court. Further, according to the Hague Evidence Convention of 1970 only a judicial authority may issue a letter rogatory. India ratified this Convention in 2007. Clause 13B is clearly an encroachment of the domain of the judiciary.

c) The third instance of encroachment occurs in Clause 9(1)(b) where the Lokpal is sought to be vested with the power to issue search warrants. Under Section 93 of the CrPC the power to issue search warrants has been given to a Court, namely a judicial body. Even District Magistrates being part of the executive cannot issue search warrants. The purpose of vesting powers to issue search warrants in a court is to ensure that it is not abused by the investigating authorities. This is an important civil liberties safeguard and cannot be allowed to be diluted. The special courts designated under the Prevention of Corruption Act should continue to issue search warrants upon the request of the Lokpal.

d) The fourth instance of encroachment occurs in Clause 17(1)(ii) where the Lokpal is empowered to inquire or investigate into any action taken by a judicial body if a complainant alleges malafides. The effect of this provision is that any interim or final order or decision or judgement of a court may be challenged before the Lokpal on the basis of a mere allegation of mala fide. As we have recommended above that the judiciary may be kept out of the purview of the Lokpal this provision may also be removed from the Draft Bill.

Recommendations:

1) The Draft Bill may be amended to provide for a procedure of removal of the Chairperson and the Members of the Lokpal that is similar to the procedure for removal of the Members of the Central Vigilance Commission.
2) Clause 13B may be dropped. There is no need to replace this provision as Clause 12 seeks to make the Lokpal a deemed police officer who can then approach the appropriate court for issue of letters rogatory under Section 166A, CrPC.
3) Clause 9(1)(b) may be amended to the effect that the Lokpal be required to approach the designated court for issue of warrants for the purpose of conducting search and seizure operations..
4) Clause 17(1)(ii) may be dropped.

Issue 2: Encroachment of the domain of the executive

The Draft Bill encroaches upon the domain of the executive in three contexts.

a) Paras (d) and (e) under Clause 8(2) empower the proposed Lokpal to order cancellation or modification of a license or lease or permission or contract or agreement or blacklist a firm or company or contractor or any other entity involved in a case under investigation. When read in combination with Clause 8(5) which make such orders binding on the Government the orders become mandatory. These actions are strictly speaking in the domain of the executive and require special knowledge, experience and skills that are unique to the concerned public authority which may not be available with the Lokpal. So the Lokpal may only recommend such measures to the Government.

b) Clause 8(1)(b) read with Clause 2(9) empowers the Lokpal to receive and investigate complaints against government servants where there are allegations of misconduct with a vigilance angle. Para (c) under Clause 8(2) empowers the Lokpal to recommend imposition of appropriate penalties under the relevant Civil Service Conduct Rules (CCS Rules). When read in combination with Clause 8(5) which make such orders binding on the Government the orders become mandatory. This function is strictly speaking in the domain of the executive. Several actions described under the definition of the phrase ‘vigilance angle’ [esp. 2(12)(b),(d), (f) and (g) are matters that are best left to the disciplining authority to tackle. There is no need to burden the Draft Bill with such provisions as they are not directly linked to the functions of the Lokpal.

c) Clause 13A requires that the Lokpal make an assessment of the number of judges required for trying cases under the Prevention of Corruption Act and recommend the requirements to the Government. Such recommendations are made binding on the Government and subject to compliance within three months. This provision is clearly in conflict with Section 3 of the Prevention of Corruption Act which vests this responsibility with the Government. This is also a case of encroachment of the domain of the executive.

Recommendations:

1) Clauses 8(2)(c), (d) and 8(5) may be amended to ensure that the Lokpal issues only recommendations. However if the public authority neither challenges the order nor gives it effect the Lokpal must have the option of approaching the appropriate High Court to get an enforcement order in the manner provided in Clauses 18(iv) and (vi).
2) The Draft Bill may be amended to omit matters relating to misconduct of officials.
3) Clause 13A may be amended to ensure that the Lokpal is consulted on matters such as designation of the number of courts and appointment of special judges for trying offences under the Prevention of Corruption Act. The provision should not impose the views of the Lokpal on the Government.

Issue 3: Encroachment of the domain of Parliament

The Draft Bill encroaches upon the domain of Parliament in two contexts.

a) Clauses 15(2A) requires the Comptroller and Auditor General (C&AG) to forward to the proposed Lokpal all such cases that constitute an allegation under this law. This provision is problematic for two reasons. The report of the C&AG is presented to the President who will cause it to be tabled in Parliament. In effect Parliament’s claim over the C&AG’s reports is protected by parliamentary privilege. The Public Accounts Committee has the privilege, authority and duty to examine the report and hold the errant departments and/or public authorities accountable for their actions. No other authority may interfere with this process. The Lokpal will have to come in only at a later stage. What this process should be needs to be debated more widely. Further the powers and functions of the C&AG are governed by the Constitution and delineated in The Comptroller And Auditor-General's (Duties, Powers And Conditions Of Service) Act, 1971. It will be necessary to amend this law in order to enable the C&AG to link up with the Lokpal without encroaching upon the domain of Parliament.

Clause 28B of the Draft Bill provides for an incomplete procedure for dealing with MPs who take bribes. However this does not take into account the constitutionally guaranteed immunity for MPs for anything they do or speak on the floor of Parliament. The Supreme Court recognized and stated this position in the matter of P V Narasimha Rao v State (CBI/SPE) [AIR 1998 SC2120] albeit with a deep sense of dissatisfaction. While there is no denying that corruption indulged in by MPs should also be punished, the Draft Bill is not the appropriate law for dealing with such matters. Existing parliamentary procedures need to be strengthened for this purpose and this also requires a larger debate

Recommendations:

1) Clause 15(2A) may be suitably amended to ensure respect for the parliamentary process of scrutinizing the C&AG’s reports.
2) Clause 28(2) may be dropped.