Theme 2: Establishment, Selection, Appointment and Removal Procedures
Issue 1: Problems with some definitions
a) The Draft Bill defines the proposed Lokpal as including the Chairperson and Members acting collectively as a body, performing specific functions in benches and also all officers exercising Lokpal’s powers and carrying out its Lokpal’s functions and responsibilities as specified in the legislation. Placing the Chairperson and Members on the same footing as other staff and functionaries is hugely problematic. Ordinary functionaries are not selected by the same process as the Members of the Lokpal. Nor do they enjoy the same rank, privilege and immunities as the Members. The Draft Bill must make a difference between the Chairperson and Members on the one hand and the officers, employees and other persons employed by the institution. The usual practice is to vest all powers in the main Members of the statutory body who then delegate some of it to the functionaries for efficient execution of the duties and obligations under the law. The functionaries can only be delegates rather than original authorities vested with statutory powers.
b) The Draft Bill states that ‘misconduct’ carries the same meaning as the similar term found in the Civil Service Conduct Rules (CCS Rules) notified by the Government of India. It may be pointed out that the CCS Rules do not define ‘misconduct’ but describe the parameters of the ‘conduct’ that is expected of government servants. The vesting of powers to investigate complaints about ‘misconduct which has a vigilance angle’ is also problematic. Similarly the term ‘vigilance angle’ is also loosely defined and covers a very broad swathe of executive action. This issue is discussed at Theme #3 under Issue #2 below.
c) The Draft Bill defines a whistleblower as a person who faces the threat of professional harm, physical harm or is actually subjected to such harm. This is a very limited definition of the term and is not in tune with the letter and spirit of the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill (Whistleblower Bill) pending in Parliament. A whistleblower is a person who actually makes a confidential disclosure of wrongdoing and impropriety that has occurred, is occurring or is likely to occur in a public authority. There need not be any threat perception at all. The mere act of blowing the whistle in the manner specified in the Whistleblower Bill is adequate for a person to acquire that status.
Recommendations:
1. Clause 2(8) may be amended to indicate that the Lokpal means only the Chairperson, Members acting collectively or in benches as may be constituted under various provisions of the Draft Bill. Clause 29 relating to delegation of powers is adequate to empower officers and employees to carry out the functions of the Lokpal.
2. The definition of whistleblower may be amended to mean a person who makes a disclosure about wrongdoing or impropriety that may have occurred or is likely to occur in a public authority under the Whistleblower law.
Issue 2: Problems in the selection process
b) The Draft Bill states that ‘misconduct’ carries the same meaning as the similar term found in the Civil Service Conduct Rules (CCS Rules) notified by the Government of India. It may be pointed out that the CCS Rules do not define ‘misconduct’ but describe the parameters of the ‘conduct’ that is expected of government servants. The vesting of powers to investigate complaints about ‘misconduct which has a vigilance angle’ is also problematic. Similarly the term ‘vigilance angle’ is also loosely defined and covers a very broad swathe of executive action. This issue is discussed at Theme #3 under Issue #2 below.
c) The Draft Bill defines a whistleblower as a person who faces the threat of professional harm, physical harm or is actually subjected to such harm. This is a very limited definition of the term and is not in tune with the letter and spirit of the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill (Whistleblower Bill) pending in Parliament. A whistleblower is a person who actually makes a confidential disclosure of wrongdoing and impropriety that has occurred, is occurring or is likely to occur in a public authority. There need not be any threat perception at all. The mere act of blowing the whistle in the manner specified in the Whistleblower Bill is adequate for a person to acquire that status.
Recommendations:
1. Clause 2(8) may be amended to indicate that the Lokpal means only the Chairperson, Members acting collectively or in benches as may be constituted under various provisions of the Draft Bill. Clause 29 relating to delegation of powers is adequate to empower officers and employees to carry out the functions of the Lokpal.
2. The definition of whistleblower may be amended to mean a person who makes a disclosure about wrongdoing or impropriety that may have occurred or is likely to occur in a public authority under the Whistleblower law.
Issue 2: Problems in the selection process
a) The Draft Bill disqualifies any person who has ever been chargesheeted for any offence under the Indian Penal Code or the Prevention of Corruption Act from being considered for appointment to the Lokpal as the Chairperson or Member. While this is a welcome measure to ensure that persons with tainted background are not picked up, the Draft Bill does not include offences recognised under special laws such as Prevention of Moneylaundering Act, Narcotic Drugs and Psychotropic Substances Act, Unlawful Activities (Prevention) Act etc. Persons committing offences under these laws must also be disqualified from consideration for appointment to the proposed Lokpal.
b) The Draft Bill stipulates “demonstrated resolve to fight corruption in the past” as a qualifying criterion for a candidate to be appointed as the Chairperson or Member of the Lokpal. This loosely worded criterion can be abused in several ways, For example, does mere participation in protests and rallies against corruption demonstrate such resolve? Or does filing a bunch of complaints of corruption against public servants demonstrate such resolve? This vague criterion has the potential for misinterpretation and abuse.
c) The Draft Bill requires the nomination of two youngest judges of the Supreme Court and two youngest of Chief Justices of High Courts to the selection committee. The underlying principle behind such a requirement is unclear. What criteria will be applied in this regard- actual age of the judge or the length of service is also not clear. It is common for the principle of seniority to guide the membership of such committees as it ensures that experience and wisdom is brought to the service of such committees. It makes better sense to have seniormost judges of the Supreme Court and the seniormost Chief Justices on the selection committee.
d) The Draft Bill contemplates a detailed procedure for identifying candidates who may be recommended for appointment to the Lokpal. While periodic vacancies are to be filled up by commencing the selection process three months prior to the arising of such vacancies, emergent vacancies are to be filled up within a month. This time limit is unrealistic given the elaborateness of the selection process specified in the proposed law. The same time limit fixed for filling up routinely arising vacancies may be stipulated for filling up emergent vacancies as well.
e) The Draft Bill includes outgoing Chairperson and Members of the Lokpal in the selection committee. This makes the selection committee too big where consensus may be difficult to achieve. Further if more than six members retire at one go they would outnumber other members of the selection committee which is undesirable. The Draft Bill may only stipulate that the outgoing Chairperson may be consulted by the selection committee over the successor.
f) The Draft Bill does not stipulate adequate objective criteria such as professional competence, and experience for the selection of candidates for appointment to the Lokpal. More objective criteria may be identified for candidates through a process of public consultation and changes may be incorporated in the Draft Bill.
g) The Draft Bill empowers the selection committee to call for recommendation of candidates from ‘such class of people’ or ‘such individuals’ as it deems fit. This requirement may run foul of Article 14 of the Constitution that guarantees equality for all before the law. All citizens must have equal opportunities for making recommendation of candidates to the selection committee.
Recommendations:
1) Clause 6(2) may be amended to include offences recognised under special criminal laws as well.
2) Clause 6(4) may be dropped.
3) In Clause 6(5)(c) and (d) the words: “seniormost” may be substituted for the words: “youngest”.
4) Clause 3(5)(b) may be dropped.
5) Clause 6(5)(g) may be replaced with a requirement to consult the outgoing Chairperson on his or her successor during the selection process.
6) More objective criteria may be identified for selection of candidates to the Lokpal after widespread public consultation.
7) Clause 6(8)(b) may be amended to ensure that the principle of equal opportunity as understood in Article 14 of the Constitution is observed to while inviting recommendations of candidates for appointment to the Lokpal.
Issue 3: Problem with the appointment process
b) The Draft Bill stipulates “demonstrated resolve to fight corruption in the past” as a qualifying criterion for a candidate to be appointed as the Chairperson or Member of the Lokpal. This loosely worded criterion can be abused in several ways, For example, does mere participation in protests and rallies against corruption demonstrate such resolve? Or does filing a bunch of complaints of corruption against public servants demonstrate such resolve? This vague criterion has the potential for misinterpretation and abuse.
c) The Draft Bill requires the nomination of two youngest judges of the Supreme Court and two youngest of Chief Justices of High Courts to the selection committee. The underlying principle behind such a requirement is unclear. What criteria will be applied in this regard- actual age of the judge or the length of service is also not clear. It is common for the principle of seniority to guide the membership of such committees as it ensures that experience and wisdom is brought to the service of such committees. It makes better sense to have seniormost judges of the Supreme Court and the seniormost Chief Justices on the selection committee.
d) The Draft Bill contemplates a detailed procedure for identifying candidates who may be recommended for appointment to the Lokpal. While periodic vacancies are to be filled up by commencing the selection process three months prior to the arising of such vacancies, emergent vacancies are to be filled up within a month. This time limit is unrealistic given the elaborateness of the selection process specified in the proposed law. The same time limit fixed for filling up routinely arising vacancies may be stipulated for filling up emergent vacancies as well.
e) The Draft Bill includes outgoing Chairperson and Members of the Lokpal in the selection committee. This makes the selection committee too big where consensus may be difficult to achieve. Further if more than six members retire at one go they would outnumber other members of the selection committee which is undesirable. The Draft Bill may only stipulate that the outgoing Chairperson may be consulted by the selection committee over the successor.
f) The Draft Bill does not stipulate adequate objective criteria such as professional competence, and experience for the selection of candidates for appointment to the Lokpal. More objective criteria may be identified for candidates through a process of public consultation and changes may be incorporated in the Draft Bill.
g) The Draft Bill empowers the selection committee to call for recommendation of candidates from ‘such class of people’ or ‘such individuals’ as it deems fit. This requirement may run foul of Article 14 of the Constitution that guarantees equality for all before the law. All citizens must have equal opportunities for making recommendation of candidates to the selection committee.
Recommendations:
1) Clause 6(2) may be amended to include offences recognised under special criminal laws as well.
2) Clause 6(4) may be dropped.
3) In Clause 6(5)(c) and (d) the words: “seniormost” may be substituted for the words: “youngest”.
4) Clause 3(5)(b) may be dropped.
5) Clause 6(5)(g) may be replaced with a requirement to consult the outgoing Chairperson on his or her successor during the selection process.
6) More objective criteria may be identified for selection of candidates to the Lokpal after widespread public consultation.
7) Clause 6(8)(b) may be amended to ensure that the principle of equal opportunity as understood in Article 14 of the Constitution is observed to while inviting recommendations of candidates for appointment to the Lokpal.
Issue 3: Problem with the appointment process
The Draft Bill gives the status of finality to the list of names recommended by the selection committee for filling up vacancies in the proposed Lokpal. The President is required to only sign on the dotted line. This turns the appointing authority into a rubber stamp. 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.
Recommendation:
The Draft Bill may be amended to empower the President to request the selection committee to reconsider the names forwarded for appointment on grounds of inadequate or non-adherence to the norms of selection or poor quality of the candidates recommended.
Issue 4: Problem with the removal process
Issue 4: Problem with the removal process
The Draft Bill envisages an unprecedented procedure for the removal of the Chaiperson and the Members of the proposed Lokpal. The Supreme Court is hidebound to take certain kinds of action in the context of removal. This issue of encroachment of the domain of the judiciary is dealt with separately at Theme #3 under Issue #1. However at no stage of the removal procedure is the offender required to be given a hearing to defend himself or herself. This violates the basic principle of natural justice- audi alteram partem. The offender has a right to be heard and defend himself/herself against the charges laid and this must be explicitly mentioned in the law itself. The procedure for removal of a Chairperson or Member of the Lokpal may follow the method of removal of the Members of the Central Vigilance Commission stipulated in the Central Vigilance Commission Act.
Recommendation:
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.
Issue 5: Problem of disenfranchisement of retired Members
Recommendation:
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.
Issue 5: Problem of disenfranchisement of retired Members
The Draft Bill disqualifies retired Chairpersons and Members of the proposed Lokpal from accepting any posts in Government. While this is desirable such persons are also to be barred from contesting elections to Parliament, State legislatures or other local bodies for life. This amounts to disenfranchisement of citizens which is undesirable. The right to contest elections is a right protected by the Constitution. It is also a basic human right recognised the world over and this right cannot be taken away from adults except on grounds of insolvency or mental instability.
Recommendation:
In Clause 5(6) the words: “or for contesting elections to Parliament, State legislatures or local bodies” may be dropped.
Issue 6: Reducing the size of the Lokpal
Recommendation:
In Clause 5(6) the words: “or for contesting elections to Parliament, State legislatures or local bodies” may be dropped.
Issue 6: Reducing the size of the Lokpal
The Draft Bill proposes an 11-member Lokpal. This number appears to be too large especially considering the requirement of several decisions to be taken on the basis of consensus as stipulated in several provisions. Consideration may be given to reducing the membership of the Lokpal to between 5-7 including the Chairperson.
Recommendation:
Clause 3(1) may be amended to reduce the number of Members of the Lokpal from 10 to five or six.
Clause 3(1) may be amended to reduce the number of Members of the Lokpal from 10 to five or six.
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