Nikhil Dey and Ruchi Gupta, MKSS
Note: This review is based on the JLP ver 2.2 dated Apr 20, 2011
For many who quite rightly guessed that the Lokpal Bill drafted by the Government would be a non starter, the alternative merited automatic support. However, little was known about the contents of the two Bills, except that the alternative being proposed by India Against Corruption had the prefix of being a “peoples” Lokpal. The consequences however are too important to leave to the expertise of the drafting committee. The people must comprehend, and play their part in ensuring that there will be an Act that will empower them to fight corruption- not makes them surrender their hopes to yet another anti-corruption organization. How people-centric is the Jan Lokpal Bill?
While the JLP is going through rapid revisions – 12 so far – the basic framework and some principles have remained constant. Broadly the Bill can be divided into four sections: the mandate and scope of the Lokpal; composition and selection of the Lokpal; powers of the Lokpal; and functioning of the Lokpal. The composition and selection of the Lokpal is substantively one of the least contentious sections – concerned largely with procedural matters and subjective preferences, rather than ideological or legal viewpoints. A discussion of the other three sections follows.
Mandate: The Jan Lokpal is being conceived of as an institution with far reaching powers. It will exercise jurisdiction over all “public servants”, which includes the entire executive, the legislature, and judiciary (Section 2.11), and will be tasked for the investigation and prosecution of all actions punishable under the anti corruption provisions in various laws. It is also mandated to act on allegation of misconduct by a government servant, grievances of the citizens, complaints from whistleblowers, and complaints against its own staff (Section 8.1). This ambitious agenda, suffers from many problems. An essential feature of democratic governance is separation of powers to preclude the exercise of uncontrolled authority by any one institution. In addition, the well intentioned objective of administrative, financial and functional independence (Section 14.3D) raises fundamental questions about its own accountability. The “people” are confined to being complainants and applicants.
In addition the centralized structure of the Lokpal is ill suited for effective grievance redressal and the inclusion of citizens charters and grievance redress in its ambit is likely to swamp the Lokpal. Effective grievance redress needs to be built upon participative collective processes that empower citizens. Instead the proposed system of a two-step appellate process centralizes power in the Lokpal, each escalation leaving the individual citizen at the mercy of an increasingly powerful and inaccessible authority.
The inclusion of the judiciary within the purview of the Lokpal also needs discussion. The Bill proposes only to investigate complaints relating to judges that would fall under the Prevention of Corruption Act. However judicial accountability extends beyond quid pro quo corruption of individual judges – and issues of transparency, judicial appointments, and judicial standards will be left unaddressed. Many eminent judges have suggested that the important issue of judicial accountability should be tackled simultaneously through a separate statute that will also protect the constitutionally mandated independence of the judiciary.
Powers of the Lokpal: The Lokpal has been vested with sweeping powers, which are susceptible to misuse.. The Lokpal can suo-motu initiate investigation (Section 14.6), tap phones and intercept other communication (Section 13C), has powers of search and seizure (Section 9), and initiate prosecution (Section 8.2b) without sanction (Section 8.6 and Section 8.7). As per multiple Supreme Court judgments, the government can tap phones only if there is “occurrence of any public emergency’ or ‘interest of public safety” and the power to tap phones goes beyond the Lokpal’s mandate to tackle corruption.
Other powers trespass Executive and judicial domain such as the power to order cancellation of license, lease or contracts (Section 8.2.d), blacklist firms (Section 8.2.e), order removal of public servants (other than ministers, MPs and judges) on completion of investigation (Section 18.8), mandate changes in the citizen charters (Section 21.5), investigate judicial orders if malafide alleged (Section 17.2) and ensure compliance of its orders through contempt of court powers (Section 13.4). The only oversight is the Constitutional default of judicial review. However with the entire judiciary envisioned to be within the purview of the Lokpal, this may not be an effective enough safeguard.
The Lokpal or Lokayukta will respond to what are likely to be lakhs of complaints and applications through a powerful local level machinery of vigilance and investigation officers whose only accountability is to their superiors. It is difficult to imagine why these officers of the Lokpal will not be as susceptible to corruption as the public servants they are investigating. The Janata at the grassroots faces the imminent danger of being saddled with an even more unaccountable centre of arbitrary power.
Functioning of the Lokpal: The Lokpal will subsume the CVC (Section 24) and the anti-corruption investigative wing of the CBI (Section 25.3). It also has complete discretion to determine the number and categories of its officers (Section 23.2) at “special conditions or special pay” which “may be different and more than ordinary pay scales” as prescribed by Lokpal (Section 23.3 and 23.7). This provision attempts to carve out a separate and special regime under the Lokpal, and it is unclear why standards and norms applicable for other government employees shouldn’t apply to those of the Lokpal. Elsewhere the Bill mandates that all records and information held by the Lokpal shall be public, even during investigation (Section 18.9). While the commitment to transparency is admirable, this provision may violate the fundamental right to individual privacy since it inevitable that the Lokpal will be privy to some information about the accused and associated that will either be irrelevant to the investigation or false (e.g., malicious testimonies). The Lokpal has power to levy fines and penalties all of which will be deposited in its “Lokpal fund”, as will 10% of public monies recovered – for disposal as per its discretion (Section 5.5). This provision creates a perverse incentive for the Lokpal to levy fines and usurps Parliamentary prerogative of oversight over public money.
The strong popular support for the Jan Lokpal Bill came from a sense of anger and frustration with the spate of scams- particularly “grand corruption” where ordinary citizens have helplessly watched money being illegally accumulated by people who seem to be beyond the law. There is a need to create, as this Bill does, a body that is well selected, empowered, and supported, to fight corruption at the very top. Perhaps innovative provisions could have been included for the Lokpal to enlist the support of the many public spirited citizens who even the RTI Act has spawned.. However, by setting an agenda that mandates the Jan Lokpal to respond to all matters of mis- governance, that spans the length and depth of the arms of the state, there is the obvious danger of losing focus and being drowned under its own requirements. More frightening is the prospect that the Lokpal will create a huge bureaucracy that will become another source of corruption, that it may not be able to monitor or control.
The joint Committee has begun by promising to consult people with an open mind. To realize the ideal of participatory democracy, the Committee will have to encourage widespread debate and own responsibility to initiate diverse public consultations where each principle of the Bill is critically discussed before its inclusion. That process could perhaps promote a culture of putting people at the centre of anti-corruption efforts. Corruption is finally about imbalanced, and arbitrary power relationships. The people need to be active participants in framing a law that in turn empowers them to fight corruption and the arbitrary use of power. That would ensure the Jan prevails.