Lokpal debate

Context

• The Supreme Court recently said the Lokpal and Lokayuktas Act of 2013 is a “workable piece of legislation” and it was not justifiable to keep its operation pending.
• As per the Act, the Leader of the Opposition in the Lok Sabha will be part of the Lokpal selection panel. At present, there is no Leader of the Opposition in the Lok Sabha. A parliamentary standing committee’s report on proposed amendments is still under consideration primarily on the very issue.
• Even though the Lokpal Bill was passed by Parliament in 2013 and came into effect in 2014, the Lokpal is not being appointed by the government.

What is the issue on Leader of Opposition?

• The selection panel consists of the Prime Minister, the Speaker of the Lok Sabha, Leader of the Opposition, the Chief Justice of India or his nominee, and an eminent jurist chosen by them.
• The court has noted that the Act provides for the selection committee to make appointments even when it is truncated due to a vacancy.
• It has made it clear that the fact that some amendments have been proposed and a parliamentary panel has submitted a report would not constitute a legal bar on enforcing the existing law.
• The court has rightly refused to read down the provision on the Leader of the Opposition to mean “the leader of the largest party in the opposition”. At the same time, it is curious that an amendment to this effect is pending since 2014, even after it was endorsed by the parliamentary committee in its December 2015 report.
• Provisions relating to the selection of the Chief Information Commissioner and the Central Bureau of Investigation Director have been amended to treat the leader of the largest opposition party as the Leader of the Opposition in the absence of anyone recognised as such. The delay in passing this simple amendment is inexplicable.
• Another provision relating to the declaration of assets by public servants was amended last year in the said Act.
• There is no law, except a direction from the chair when G.V. Mavalankar was Speaker, that says recognition is given only to a party that has won 10% of the seats in the Lower House. Note it down, your favourite Laxmikant has been wrong.
• A 1977 Act on the salary of the Opposition Leader defines the position as the leader of the largest party in the opposition and recognised as such by the Speaker.
• An inescapable inference is that the country does not have an anti-corruption ombudsman not due to any legal bar, but due to the absence of political will.

 What is Lokpal?

• A Lokpal is an anti-corruption authority or ombudsman who represents the public interest. The concept of an ombudsman is borrowed from Sweden.
• The Lokpal has jurisdiction over all Members of Parliament and central government employees in cases of corruption.
• The term “Lokpal” was coined by Dr. L.M.Singhvi in 1963. The concept of a constitutional ombudsman was first proposed in parliament by Law MinisterAshoke Kumar Sen in the early 1960s.
• The first Jan Lokpal Bill was proposed by Shanti Bhushan in 1968 and passed in the 4th Lok Sabha in 1969, but did not pass through the Rajya Sabha.
• Subsequently, ‘lokpal bills’ were introduced in 1971, 1977, 1985, again by Ashoke Kumar Sen, while serving as Law Minister in theRajiv Gandhi cabinet, and again in 1989, 1996, 1998, 2001, 2005 and in 2008, yet they were never passed. Forty five years after its first introduction, the Lokpal Bill is finally enacted in India on 18 December 2013.
• The Lokpal Bill provides for the filing, with the ombudsman, of complaints of corruption against theprime minister, other ministers, and
• TheAdministrative Reforms Commission (ARC) recommended the enacting of the Office of a Lokpal, convinced that such an institution was justified, not only for removing the sense of injustice from the minds of citizens, but also to instill public confidence in the efficiency of the administrative machinery.

 Anna Hazare movement

Jan Lokpal Bill demanded by civil society has following features –

• To establish a central government anti-corruption institution calledLokpal, supported by Lokayukta at the state level.
• As is the case with theSupreme Court of India and Cabinet Secretariat, the Lokpal will be supervised by the Cabinet Secretary and the Election Commission. As a result, it will be completely independent of the government and free from ministerial influence in its investigations.
• Members will be appointed by judges,Indian Administrative Service officers with a clean record, private citizens and constitutional authorities through a transparent and participatory process.
• A selection committee will invite short-listed candidates for interviews, the video recordings of which will thereafter be made public.
• Every month on its website, theLokayukta will publish a list of cases dealt with, brief details of each, their outcome and any action taken or proposed. It will also publish lists of all cases received by the Lokayukta during the previous month, cases dealt with and those which are pending.
• Inquiry has to be completed within 60 days and investigation to be completed within six months. Lokpal shall order an investigation only after hearing the public servant.
• Losses to the government by a corrupt individual will be recovered at the time of conviction.
• Government office-work required by a citizen that is not completed within a prescribed time period will result inLokpal imposing financial penalties on those responsible, which will then be given as compensation to the complainant.
• Complaints against any officer ofLokpal will be investigated and completed within one month and, if found to be substantive, will result in the officer being dismissed within two months.
• The existing anti-corruption agencies [CVC], departmental vigilance and the anti-corruption branch of the [CBI] will be merged intoLokpal which will have complete power authority to independently investigate and prosecute any officer, judge or politician.
• Whistle-blowerswho alert the agency to potential corruption cases will also be provided with protection.

    Government Bill

• The historic Lokpal and Lokayuktas Act, 2013 was passed by Indian Parliament paving the way for establishment of a Lokpal (Ombudsman) to fight corruption in public offices and ensure accountability on the part of public officials, including the Prime Minister, but with some safeguards.
• Lokpal was to consist of a chairperson and a maximum of eight members, of which 50% will be judicial members 50% members of Lokpal shall be from SC/ST/OBCs, minorities and women.
• Selection of chairperson and members of Lokpal through a selection committee consisting of PM, Speaker of Lok Sabha, leader of opposition in Lok Sabha, Chief Justice of India or a sitting Supreme Court judge nominated by CJI. Eminent jurist to be nominated by President of India on basis of recommendations of the first four members of the selection committee “through consensus”.
• Lokpal’s jurisdiction will cover all categories of public servants. All entities (NGOs) receiving donations from foreign source in the context of the Foreign Contribution Regulation Act (FCRA) in excess of Rs 10 lakh per year are under the jurisdiction of Lokpal. Centre will send Lokpal bill to states as a model bill. States have to set up Lokayuktas through a state law within 365 days.

• Lokpal will have power of superintendence and direction over any central investigation agency including CBI for cases referred to them by the ombudsman.
• A high-powered committee chaired by the PM will recommend selection of CBI director. The collegium will comprise PM, leader of opposition in Lok Sabha and Chief Justice of India PM has been brought under purview of the Lokpal, so also central ministers and senior officials.
• Directorate of prosecution will be under overall control of CBI director. At present, it comes under the law ministry.
• Appointment of director of prosecution to be based on recommendation of the Central Vigilance Commission.
• Director of prosecution will also have a fixed tenure of two years like CBI chief.
• Transfer of CBI officers investigating cases referred by Lokpal with the approval of watchdog.
• It incorporates provisions for attachment and confiscation of property acquired by corrupt means, even while prosecution is pending.
• It lays down clear timelines for preliminary enquiry and investigation and trial. Provides for special courts Public servants will not present their view before preliminary enquiry if the case requires ‘element of surprise’ like raids and searches.
• It grants powers to Lokpal to sanction prosecution against public servants.
• CBI may appoint a panel of advocates with approval of Lokpal, CBI will not have to depend on govt advocates

Arguments in favour of Lokpal

• Six years ago, in April 2011, Anna Hazare began a hunger strike to establish a strong Jan Lokpal Bill to fight all-pervasive corruption.
• Thereafter, for more than two years until the 2013 elections, the India Against Corruption (IAC) movement of Team Anna, riding the wave of popular discontent and anger against the governing class, brought a weak government to its knees and governance to a standstill.
• Caving in to enormous public pressure, Parliament passed the Lokpal Act in 2013. Four years down the line, this act, perhaps the only one enacted post-Independence due to direct “people power”, stagnates in the statute books, ignored by the civil society that earlier vigorously rooted for its implementation.
• Significantly, the act, even in its present moribund state, is being whittled down with amendments, such as the one in 2016 which eliminates the earlier statutory requirement for public servants to disclose the assets of their spouses and dependent children, although it is well-known that illegally acquired assets are usually in the names of family members.
• Similarly, the government’s proposed amendment to the Prevention of Corruption Act (PCA) — which requires the Lokpal to seek government sanction not only for prosecuting public servants but even retired public officials — is clearly designed to weaken the Lokpal.
• The Lokpal Act has invested the inquiry and prosecution wings of the Lokpal with the powers presently exercised by the CBI, the last thing that the political executive would concede willingly. The CBI today is an outfit with an unmistakeable aura of menace, with everyone in the hierarchy from ministers downward holding the agency in fearful awe.
• No government would want an investigating agency functioning under an unaccountable entity to monitor not only government servants but also MPs and the top political executive including the PM.
• How does one ensure the impartiality and fairness of a Lokpal armed with a police investigative agency that functions free of political regulation? Will the inherent tensions between the anti-corruption agency, the Lokpal and the government adversely affect governance?
• Only time will tell, but as matters stand today, these issues are irrelevant as the governing elite are in no mood to see a functioning Lokpal.

Arguments against Lokpal

• Lokpal and Lokayuktas were a bad idea since they sought to create a parallel investigation structure and were borne out of the belief that no system that had anything to do with the government—even if it was autonomous like the Central Vigilance Commission (CVC)—was capable of delivering justice while a body of civic-minded ladies and gentlemen would be able to do so.
• Compared to the Lokpal that was being pushed by activists like Anna Hazare, the new Act is a lot better.
• In the original bill, the Lokpal could cancel licences after an investigation—while that may have looked desirable, it created a system parallel to the one run by courts.
• Both the central government and the Lokpal, for instance, have jurisdictions over the same employees; and how does the Centre’s plan to amend the Prevention of Corruption Act to safeguard decision-making square with the Lokpal’s mandate?
• The fact that an autonomous CVC is not considered good enough to ensure the CBI functions independently, similarly, is worrying.
• In any case, those who believe it will do better under the Lokpal should relook their position after the way members of the Karnataka Lokayukta were accused of corruption/extortion in the High Court.
• The problem could get a lot messier when the Lokpal is operationalised and starts giving orders that create trouble for the elected government—it needs to be asserted that, while the government is an elected body, the Lokpal is not.

Way forward

• Government should tread cautiously on the matter of Lokpal as it not only involves critical issues of accountability and transparency of the government itself, but may also impact the decision making capacities of the government.
• In this context therefore, the government should make necessary amendments in the Lokpal Act to plug the deficiencies, without diluting the efficacy of the Lokpal to scrutinise the affairs of the government.