Political Career for Indian Youth- Jan Lokpal Bill- Theme-7 Drafting Errors

Issues for Consideration and Recommendations for Improvement

Theme 7: Drafting Errors

Issue 1: No ouster clause attached to Clause 28(4)

Clause 28(4) in the Draft Bill seeks to make submission of property statements a statutory obligation for all government servants. It also seeks to empower the proposed Lokpal to initiate prosecution against errant public servants in the event of non-compliance. While this is a welcome measure this provision is not linked to an ouster clause that bars the operation of Section 197 of the CrPC. Under Section 197 no court may take cognizance of an offence without the previous sanction of the appropriate Government. The ouster clause contained in Clause 8(7) earlier in the text states that it is applicable to all proceedings initiated under the Act. However that Clause ought to have been placed in the last part of the Draft Bill under the chapter relating to Miscellaneous provisions. This would ensure that arguments about general law and special law and earlier law and later law are not launched in a bid to scuttle the intent of Clause 8(7) vis-à-vis Clause 28(4).

Recommendation:

The ouster clause contained in Clause 8(7) may be placed in the Chapter on Miscellaneous provisions to avoid unnecessary confusion.

Issue 2: Exercise of the powers of delegated legislation

Clause 32 empowers the Central Government to make Rules to carry out the provisions of this Act when adopted. However the Rules can be made only after obtaining the approval of the proposed Lokpal. This requirement is contrary to principles of delegated legislation. A Government’s power to make Rules under an Act cannot be fettered in this manner. However there is no harm in requiring the Central Government to consult with the Lokpal prior to notifying the final version of the Rules. This is in fact desirable. The Judicial Standards and Accountability Bill, 2010 requires the Central Government to consult with the Chief Justice of India before making Rules under its provisions. The making of Rules is not contingent upn securing the approval of the Chief Justice.

Recommendation:

In the proviso under Clause 32(1) of the Draft Bill, the words: “and” and “approval of” occurring after the words: “made only in consultation” may be dropped.

Issue 3: Make Rules and Regulations after prior publication

The Draft Bill does not contain any requirement for consulting the people while making Rules and Regulations. This is contrary to the very process that has informed the drafting of the Bill itself. When the main law is drafted in consultation with people, there is no reason why subsidiary legislation must not involve public consultations. Section 23 of the General Clauses Act contains a procedure for notifying Rules and Regulations after prior publication. This procedure enables people to participate in the rule making process and ensures that people exercise oversight over excessive use of delegated powers to the detriment of the letter and spirit of the principal Act. Under this procedure people will have the opportunity for suggesting amendments to the draft rules and regulations before they are operationalised.

Recommendation:

Clauses 32 and 34 may be amended to require prior publication of the Rules and Regulations notified under the law.

Issue 4: Absence of laying requirements for Rules, Regulations and Orders

The Draft Bill does not require that the Rules, Regulations and Clarificatory orders notified by the Government or the proposed Lokpal to be tabled in Parliament for modification, if necessary. Laying of subsidiary legislation in both Houses of Parliament is essential for Parliament to exercise oversight on the actions of delegatees. If enabling provisions are not incorporated in a Bill delegated legislation will escape parliamentary scrutiny and deprive Parliament of an opportunity to annul or modify Rules and Regulations that are contrary to the spirit of the principal Act.

Recommendation:

Clauses 32, 33 and 34 may be amended to include laying provisions for Rules, Regulations and Clarificatory orders using the standard formula. (See Section 29 of the RTI Act)

Issue 5: Overriding effect of the law

Clause 35 of the Draft Bill states that it will override all other laws in their entirety. This is contrary to established practice. As it deals with a specific category of criminal offences this law must be subject to the safeguards in the CrPC. Therefore it is advisable to give this law an overriding effect on other laws only to the extent of inconsistency.

Recommendation:

Clause 35 may be substituted with the following:
“The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

Issue 6: Minor drafting errors need to be ironed out

There are several drafting errors in the Draft Bill. Some glaring examples are as follows:

a) Clause 6(1) states that the President shall appoint the Chairperson and the Members of the Lokpal. However earlier in the Draft Bill Clause 3(4) states that the Government shall appoint the Chairperson and members of the first Lokpal within six months of enactment. This amounts to contradiction as to who will appoint the first Lokpal.

b) Clause 3 does not differentiate between the ‘establishment’ and the ‘constitution’ of the Lokpal. The Government will have to first create the institution of the Lokpal through a gazette notification. Then the members will have to be appointed. These sub-clauses need to be differently worded. Sections 12 and 15 of the RTI Act can provide guidance in this regard.

c) Clause 6(8)(a) states that the selection committee will select a five member search committee comprising of former C&AGs and Chief Election Commissioners (CEC). At any given point of time only one person will be functioning as the CEC. This clause needs to be amended to include the term ‘former’ before the words: “Chief Election Commissioners.”

d) Clause 6(8)(d) makes for convoluted reading. The ostensible purpose of this Clause is to provide for situations such as the appointment of a person as Chairperson of the National Human Rights Commission. The eligible candidate must have served as the Chief Justice of India. However this sense is not properly conveyed by this Clause in its current formulation.

e) The Draft Bill’s provisions are loosely worded in several places. For example Clause 31(2) states as follows: “Such fines shall be recoverable as dues under Land Revenue Act.” Laws relating to land revenue differ from State to State and have different names. This clause may be redrafted to state as follows: “Fines imposed under this section shall be recovered in the manner of arrears of land revenue.”