Political Career for Indian Youth- Jan Lokpal Bill-theme 4-power

Issues for Consideration and Recommendations for Improvement

Theme- 4 – Power

Issue 1: Need for clarity on procedures for inquiry and investigation

The Draft Bill uses the terms ‘inquiry’ and ‘investigation’ interchangeably in several places and in a few as two separate actions. These terms have specific meaning in criminal law and the Draft Bill must recognize them as such. There is no clarity on the scope of actions that constitute an inquiry process that is different from an investigation process. It is also not clear as to when a complaint will be recorded as a First Information Report (FIR) or when suo motu cognizance of a matter by the Lokpal will be converted into an FIR. No investigation may be conducted without an FIR being registered under the existing criminal law procedure. Will this be done in a police station or will the Lokpal itself be a police station for the purpose of the CrPC? Also, there is little clarity in the Draft Bill about the exercise of powers relating to arrest, bail, summoning witnesses for interrogation etc. which are all part and parcel of the criminal law procedure. Provisions clearly spelling out these matters need to be incorporated in the draft Bill.

Recommendation:

The Draft Bill must clarify the scope of actions in an ‘inquiry’ process as well as the procedure that will be adopted in the lead up to the investigation of an offence covered by this law.

Issue 2: Powers of civil court vis-à-vis investigation

Clause 12 seeks to make the proposed Lokpal a deemed police officer as understood in Section 36 of the CrPC. Clause 10(3) states that any proceeding before the Lokpal will be deemed to be a judicial proceeding within the meaning of Section 193 of the Indian Penal Code. Clause 10(2) seeks to give the powers of a civil court to the Lokpal for the purpose of conducting any investigation including preliminary inquiry. These powers include examining any person on oath. This combination of powers is hugely problematic for the following reasons:

a) an inquiry or investigation launched into a criminal offence is not a judicial proceeding under criminal law.

b) Statements made to an Investigating Officer (IO) under Section 161 cannot be adduced as substantive evidence during a trial. Under Section 162 the IO cannot require a witness making such a statement to sign it nor can it be used in a court of law for any purpose except for the purpose of cross examination.
c) However if statements are collected on oath they will be in the nature of confessions or statements made under Section 164 of the CrPC. These statements have substantive evidentiary value as they are made before a Magistrate. Under this procedure the Magistrate is required to inform the witness that he or she is not bound to make such a statement [this is the fundamental right of non-self incrimination guaranteed under Article 20(3) of the Constitution] and that any statement made by him or her may be used against him or her. The combination of powers enables the Lokpal to act as a police officer and compel a witness to make a statement on oath which can then be used as substantive evidence in a trial. Important safeguards under the criminal law procedure will come to naught under the scheme of powers proposed in the Draft Bill. It is not advisable to give the powers of a civil court to the Lokpal for the purpose of investigating or inquiring into any matter. The powers available to the Lokpal on account of being a deemed police officer under the CrPC and the ability to approach the designated courts for the purpose of conducting search and seizures appear to be adequate.

Recommendation:

Sub-clauses (2) and (3) of Clause 10 may be dropped.

Issue 3: Power to punish for contempt

Clause 13(4) of the Draft Bill empowers the proposed Lokpal to punish any person as it were a court exercising contempt powers under the Contempt of Courts Act, 1971. This is also hugely problematic because powers to punish for one’s contempt are given only to the High Courts and the Supreme Court which have the power to impose punishments and fines. The Lokpal is not a court of record nor are its proceedings judicial in nature as has been argued above. However a way must be found to ensure that the Lokpal is able to do its work without hindrance and its directions and orders are complied with. This can be accomplished by permitting the Lokpal to move the High Court to get an enforcement order in the manner described in Clauses 18(iv) and (vi).

Recommendation:

Clause 13(4) may be replaced with provisions for enforcement contained in Clauses 18(iv) and (vi).

Issue 4: Powers of message interception and eavesdropping

Clause 13C of the Draft Bill seeks to make the proposed Lokpal the deemed designated authority for the purpose of intercepting and monitoring messages or data or voice transmitted through telephones or any other medium under the Indian Telegraph Act, 1885. This proviso is to be read with the provisions of the Information Technology Act which permits the interception of message transmitted through the Internet. Under the Indian Telegraph Act telephone tapping is permissible only in the event of occurrence of any public emergency or in the interest of public safety. The Hon’ble Supreme Court of India explained these grounds in the matter of People’s Union for Civil Liberties v Union of India and Anr. [JT1997(1)SC288] as follows:

“Section 5(1) if properly construed, does not confer unguided and unbridled power on the Central Government/State Government specially authorised officer to take possession of any telegraph. Firstly, the occurrence of a "public emergency" is the sine qua non for the exercise of power under this section. As a preliminary step to the exercise of further jurisdiction under this section the Government or the authority concerned must record its satisfaction as to existence of such an emergency. Further, the existence of the emergency which is a pre-requisite for the exercise of power under this section, must be a 'public emergency’ and not any other kind of emergency. The expression 'public emergency has not been defined in the statute, but contours broadly delineating its scope and features are discernible from the section which as to be read as a whole. In Sub-section (1) the phrase 'occurrence of any public emergency is connected with and is immediately followed by the phrase "or in the interests of the public safety". These two phrases appear to take colour from each other. In the first part of Sub-section (2) those two phrases again occur in association with each other, and the context further clarifies with amplification that a 'public emergency’ within the contemplation of this section is one which raises problems concerning the interest of the public safety, the sovereignty and integrity or India, the security of the State, friendly relations with foreign States of public order or the prevention of incitement to the commission of an offence. It is in the context of these matters that the appropriate authority has to form an opinion with regard to the occurrence of a 'public emergency’ with a view to taking further action under this section. Economic emergency is not one of those matters expressly mentioned in the statute. Mere 'economic emergency'-as the High Court calls it -may not necessarily amount to a 'public emergency' and justify action under this section unless it raises problems relating to the matters indicated in the section.”

The Apex Court observed further as follows:

“Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the said Section. "Occurrence of any public emergency" or "in the interest of public safety" are the sine qua non for the application of the provisions of Section 5(2) of the Act. Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said Section. Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression "public safety" means the state or condition of freedom from danger or risk for the people at large. When either of these two conditions are not in existence, the Central Government or a State Government or the authorised officer cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone tapping unless a public emergency has occurred or the interest of public safety or the existence of the interest of public safety requires. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.
This judgement makes it abundantly clear that the powers to intercept messages and eavesdrop on conversations are ordinarily not required for the performance of the functions and duties of the Lokpal. There is no reason why this power should be vested in the Lokpal.

Recommendation:

Clause 13C may be dropped.

Issue 5: Conducting investigations in public and the disclosure of information

Clause 18 of the Draft Bill deals with provisions relating to investigations of complaints received by the Lokpal. All hearings are to be videographed and made available to any member of the public. Except for rare circumstances, all hearings during an investigation process where a public servant rebuts the allegations contained in a complaint against him or her are to be held in public [Clause 18(ii)]. If a case is closed all documents relating to the case are to be treated as public [first proviso under Clause 18(1)]. Clause 30A states that once an investigation or inquiry is complete in any case all records shall be posted by the Lokpal on a website. Information may be withheld only if disclosure will involve the identity of a person who has requested anonymity or if the disclosure is likely to threaten the internal and external security of India. 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 the right to one’s 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. The RTI Act provides adequate procedures and protection for protecting important public interests. The Draft Bill may be aligned with the provisions of this Act. This would also ensure that the Central Information Commission will be able to adjudicate over access disputes instead of the Lokpal which will become an interested party in such matters.

Recommendation:

The Draft Bill may be amended in the appropriate places to ensure that access to information may be provided by the Lokpal in accordance with the procedures and provisions of the RTI Act.

Issue 6: Hiring private agencies for investigation

Clause 23(4)(c) of the Draft Bill seeks to empower the proposed Lokpal to utilize the services of any person including private persons or any other agency for the purpose of conducting investigations. This is also a problematic provision as investigations must be conducted by government servants only as they are accountable to the law. Private agencies cannot be held accountable in a similar manner as they do not fall within the meaning of the term ‘State’ as defined in Article 12 of the Constitution. Private agencies may be hired only for the purpose of providing specialised services such as forensics.

Recommendation:

Clause 23(4)(c) may be amended to ensure that private persons or agencies may be hired only for the purposes of highly specialized or skilled services which may otherwise not be available to the Lokpal from the government sector.

Issue 7: Maintaining independence of the prosecuting agency

The Draft Bill seeks to empower the proposed Lokpal with the powers to both investigate and prosecute cases of corruption. This provision is contradictory to the principle of separation of powers of investigation and prosecution. Until the CrPC’s thorough revamp in 1973 criminal investigation and prosecution were handled by a single agency namely, the police. The Law Commission in its 14th report argued for their separation on the following grounds:

1) There was too much control of the police department over the prosecution despite the latter being a function organically linked but theoretically independent of the former.
2) The Police Dept. had neither the legal know how to conduct a criminal prosecution nor the high degree of objectivity and detachment that is necessary for a prosecutor in the case. High degree of subjectivity and attachment with the case implies that the prosecutor will be more biased towards securing a conviction.
3) A prosecutor is an agent of justice and an officer of the trial court. He/she must have the independence to function in an unbiased manner. If not the basic principle of the criminal justice system – “the accused is to be presumed innocent until proven guilty” will be compromised.

The Law Commission’s recommendations were accepted and several States set up independent criminal prosecution directorates detaching the prosecution service from the police department. There is no reason why corruption cases cannot be investigated by the Lokpal and the prosecution be carried out by prosecutors selected from a panel of lawyers who are not on the payrolls of the Lokpal. Some have argued that the Central Bureau of Investigation (CBI) undertakes both investigation and prosecution of corruption cases. This is indeed true. However this mechanism appears to be different from the guidelines laid down by the Hon’ble Supreme Court in the matter of Vineet Narain and Ors v Union of India and Ors [JT 1997(10) SC247] Chief Justice J S Verma laid down guiding principles for the Prosecution Agency of the CBI as follows:

“1. A panel of competent lawyers of experience and impeccable reputation shall be prepared with the advice of the Attorney General. Their services shall be utilised as Prosecuting Counsel in cases of significance. Even during the course of investigation of an offence, the advice of a lawyer chosen from the panel should be taken by the CBI/Enforcement Directorate.

2. Every prosecution which results in the discharge or acquittal of the accused must be reviewed by a lawyer on the panel and, on the basis of the opinion given, responsibility should be fixed for dereliction of duty, if any, of the concerned officer. In such cases, strict action should be taken against the officer found guilty of dereliction of duty.
3. The preparation of the panel of lawyers with the approval of the Attorney General shall be completed within three months.
4. Steps shall be taken immediately for the Constitution of an able and impartial agency comprising persons of unimpeachable integrity to perform functions akin to those of the Director of Prosecutions in U.K. On the Constitution of such a body, the task of supervising prosecutions launched by the CBI/Enforcement Directorate shall be entrusted to it.

The aforementioned guidelines make it clear that the prosecution agency was never intended to be a part of the CBI. Its members were to be able to supervise the prosecutions launched by the CBI. However today the Directorate of Prosecution (Legal Division) is one of the seven divisions of the CBI under the overall supervision of the CBI Director. This appears to be the second instance of skirting around the letter and spirit of the guidelines laid down by the Apex Court in this case. The scheme proposed by the Apex Court for the CBI appears to be appropriate for the Lokpal as well. The Lokpal could draw up a panel of lawyers in consultation with the Attorney General for the purpose of conducting prosecutions. They could be remunerated for their services instead of putting them on the payrolls of the Lokpal.

Recommendation:

The Draft Bill may be amended to provide for prosecution of corruption cases in a manner comparable to that stipulated by the Hon’ble Supreme Court in the matter of Vineet Narain and Ors v Union of India and Ors.

Issue 8: Assigning work within the Lokpal

Clause 14(4) of the Draft Bill provides for the random assignment of members to benches using a computer. This is a strange provision given the fact that computers have not yet advanced to the stage where they will function without human intercession. A human being will still need to work the computer. It is commonplace for the head of such institutions to be given the responsibility for its general administration and superintendence including the constitution of benches. The Chairperson of the Lokpal must be empowered to constitute benches based on the principles laid down in the Draft Bill.

Recommendation:

Clause 14(4) may be substituted with a provision that empowers the Chairperson of the Lokpal to constitute benches for the purpose of performing various functions under the law.