Will Lokpal Bill End Corruption In India
By Syed Ali Mujtaba
20 December, 2013
After fifty-two years of its inception, the Lokpal bill at last has become a law. Both the houses of the Parliament passed this controversial bill on December 18, 2013 amidst reservation from the Samajwadi party and some other ruling UPA allay.
The new Lokpal bill has the consent of civil right activist Anna Hazare, who had been a vociferous campaigner for a strong Lokpal bill to end corruption in India and had led a social anti- corruption movement in 2011and 2012 in the country.
The latest Lokpal bill, however do not have the support of another anti graft crusader, Arvind Kajrewal, the leader of the Aam Admi Party, who too once was in the forefront of the anti corruption campaign and of the core group of team Anna.
The word Lokpal is derived from the Sanskrit word "lok" meaning people and "pal" meaning protector or caretaker. So, Lokpal means a caretaker of people. Actually, Lokpal is an Ombudsman or Legal Representative to be constituted as an independent body at the state and the central level, where complaints of corruption against the representatives of the people can be filed, including Prime Minister, though with certain riders.
The idea behind creating an ombudsman is to inculcate a sense of justice in the minds of the people and also to instill confidence in them about the efficiency of the government’s administrative machinery. The question however remains, will the Lokpal bill end corruption in India. At the moment no one has an answer to it.
The history of Lokpal begins from the Nehruvian era. The concept of a constitutional ombudsman was first proposed in Parliament by Law Minister Ashoke Kumar Sen in the early 1960s during the second Lok Sabha. The word 'lokpal' was first coined by Dr L.M.Singhvi in 1963.
The first ‘Jan Lokpal Bill’ was drafted by lawyer Shanti Bhushan in 1968 and it was passed in the 4th Lok Sabha in 1969. However, this bill could not get passed in the Rajya Sabha. Several 'lokpal bills' were introduced after that in 1971, 1977, 1985, 1989, 1996, 1998, 2001, and 2005 and in 2008. However both the houses of the Parliament were never able to pass the bill in tandem.
Each time the bill was introduced in either house of the Parliament, several conspicuous flaws were found in the bill. The bill was referred to all sorts of committees for improvement. The main reservation was the constitution of separate body to try corruption cases and no government was able to take a decisive stand on that and as a result this bill never got passed by both the houses of the Parliament.
It’s since 2011 once again fresh campaign was launched by the civil society for passing the lokpal bill. Some prominent members of the civil society went on to draft a new ‘Jan Lokpal bill’ and demanded its approval by the government.
Social activist Anna Hazare sat on fast in New Delhi on Dec 27, 2011 to get this ‘Jan Lokpal bill’ passed. The government under the pressure from his agitation hurriedly brought its own version of Jan Lokpal Bill in the Parliament and got it passed in the Lok Sabha with some modifications on Dec 29, 2011.
However, Anna Hazare and his team rejected Bill calling it toothless. After that the government never brought bill in the Rajya Sabha and deferred it to the next Parliamentary session. In the year 2012 a series anti-corruption demonstrations were held across India to press for the passing of the Lokpal bill. Meanwhile, political differences arose in Team Anna, and Kejriwal and some others split from it to form the Aam Aadmi Party.
This background provided the actual setting for the passing of the Lokpal bill. With Anna Hazare once again sitting on fast pressing for the passing of the Lokpal bill, The UPA government did not like to face another Dec 2011, like situation. It once again brought the Lokpal bill and this time was able to successfully pass the bill in both the houses of the Parliament. It had support from the opposition BJP and its other allies. In this way the Lokpal bill at last is able to see the light at the end of the tunnel.
Here are some of the salient features of the new Lokpal bill:
The new bill mandates states to set up Lokayuktas within 365 days. States have the freedom to determine the nature and type of Lokayukta.
The Lokpal will consist of a chairperson and a maximum of eight members, of which fifty percent shall be judicial members. Fifty percent members of Lokpal shall be from among SC, ST, OBCs, minorities and women.
The selection committee will have prime minister, Lok Sabha speaker, leader of the opposition in Lok Sabha and the Chief Justice of India. A fifth member of the selection committee for selection of Lokpal under the category of "eminent jurist" may be nominated by the president on the basis of recommendation of the first four members of the selection committee.
The new bill includes societies and trusts that collect public money, receive funding from foreign sources, and have an income level above a certain threshold, it excludes bodies creating endowments for or performing religious or charitable functions.
Before taking a decision on filing a charge sheet in a case upon consideration of the investigation report, the Lokpal may authorize its own prosecution wing or the concerned investigating agency to initiate prosecution in special courts.
For independence of the CBI, in the new bill a directorate of prosecution will be formed. Appointment of the director of prosecution will be on the recommendation of the Central Vigilance Commissioner. Transfer of officers of CBI investigating cases referred by Lokpal will be only with the approval of Lokpal who will also have superintendence over CBI in relation to Lokpal referred cases.
The new bill says a government servant will get a hearing before a decision is taken by the Lokpal.
The Prime Minister will be under the purview of the Lokpal with subject matter exclusions and specific process for handling complaints against the prime minister.
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. Inquiry against the Prime Minister has to be held in-camera and approved by two-thirds of the full bench of the Lokpal.
In case of false and frivolous complaints imprisonment up to one year and a fine of up to Rs.1 lakh has been mooted. Public servants could be imprisoned up to seven years. In case of criminal misconduct and those habitually abetting corruption can get jail term up to 10 years.
The idea of passing the Lokpal bill is very noble indeed. However, will the Lokpal bill live up to its desired objectives, will be only known only when it is finally implemented.
Author is a journalist based in Chennai. He can be contacted at email@example.com
Comments are moderated
The year 2011 will be remembered in India as the year of the campaign against corruption and for the Jan Lokpal Bill. The campaign began in January 2011 in the backdrop of the publicity that accompanied the several mega-scams that surfaced in 2010, notably those relating to the Commonwealth Games and the telecom spectrum allocations. It caught the public imagination with Anna Hazare's fast at Jantar Mantar in New Delhi in April 2011. That forced the UPA government to constitute a joint drafting committee for a Lokpal bill. The civil society representatives in the committee proposed a bill called the Jan Lokpal bill, which became the basis for discussions. The basic principles on which the bill was drafted were culled from the United Nations Convention against Corruption, which required all countries to put in place anti-corruption investigative agencies that would be independent of the executive government and would have the jurisdiction to investigate all public servants for corruption.
The Jan Lokpal Bill thus provided for the selection of a 11-member Lokpal by a broad-based selection committee (comprising the Prime Minister, the Leader of the Opposition, two judges selected by all the judges of the Supreme Court, the Comptroller and Auditor General, the Chief Election Commissioner, the Central Vigilance Commissioner and the previous three chairpersons of the Lokpal), through a transparent process.
It sought to bring the anti-corruption wing of the Central Bureau of Investigation (CBI) under the Lokpal's administrative control. The Lokpal was to be given corruption investigative jurisdiction over all public servants (including Members of Parliament, judges and all sections of the bureaucracy), and those who may have abetted their acts of corruption (including corporations or non-governmental organisations). The Lokpal could recommend the removal of those officials who were charge sheeted for corruption and order the freezing of any assets that seemed to be acquired by corrupt means.
The Bill sought to provide that corruption trials would be put on the fast track and the courts would determine the loss caused to the public exchequer by an act of corruption — which would be recovered from the corrupt public servants and their abettors. It provided for citizens' charters to be framed by all public authorities, which would provide for time-bound delivery of public services; failure to do so would be actionable at the hands of officers working under the Lokpal. The bill required States to have Lokayuktas (covering State government officials) on the same lines as the Lokpal.
In order to ensure the integrity of the Lokpal institution, several layers of accountability were sought to be built into its working. Its functioning was made totally transparent by means of a requirement to put every detail of its investigations on a public website after the completion of investigations. The CAG was required to do an annual financial and performance audit of the functioning of the entire Lokpal institution. Any citizen could make a complaint against any member of the Lokpal to the Supreme Court, which had the power to order his or her suspension and even removal.
In addition, there were other important, anti-corruption provisions in the Jan Lokpal Bill. It required every public authority to give out contracts, leases and licences with total transparency and by public auction, unless such procedures were stated to be impossible to undertake. Public servants were barred from taking up jobs with those organisations or companies with which they had been dealing in their official capacity. This was meant to prevent an insidious form of corruption whereby public officials would take jobs instead of bribes from the organisations that they had been patronising in their official capacity.
After nine meetings, the government terminated its engagement with the civil society members of the joint drafting committee and went on to draft and table its own Bill in the monsoon session of Parliament. This Bill incorporated some of the provisions of the Jan Lokpal Bill but fell far short of what was required to even set up an independent and comprehensive anti-corruption investigative organisation. It left the selection of the Lokpal to a government-dominated committee. Though powers for the removal of Lokpal members were vested in the Supreme Court, complaints against the Lokpal could only be made by the government, which retained the power to suspend them.
The government's Bill removed most public servants from the jurisdiction of the Lokpal, including the Prime Minister, MPs (insofar as their corruption pertained to their actions in Parliament), judges, and Class 2, 3 and 4 officers. Instead, it brought lakhs of NGOs (even those which were not funded by the government) within its jurisdiction.
Though the Bill kept the CBI with the government, it allowed the Lokpal to have its own anti-corruption investigative body. It eliminated the need to get prior sanction for investigation from the government. It provided for the confiscation of the assets of corrupt public servants and the recovery of losses caused by their acts of corruption from them. But it created a terribly cumbersome procedure for investigation, by which a preliminary inquiry and hearing of the corrupt public servant were made compulsory before investigation could begin. This ended the possibility of making surprise raids and seizures on the premises of corrupt public servants or their abettors.
Anna Hazare announced his second round of fasting in protest against this Bill, from August 16. This brought lakhs of people on to the streets across the country, and eventually forced the government to convene a special session of Parliament, where Anna's three minimal demands were accepted by a unanimous Sense of the House resolution. Thus, all government servants and the citizens' charter were to be brought under the Lokpal's jurisdiction. The Bill would provide for Lokayuktas in the States on the same model as the Lokpal. The government promised to bring forward and pass such a strengthened bill in the winter session of Parliament.
Thereafter, the Bill was referred to the Standing Committee of Parliament, which after three months gave a fractured report with many dissenting notes. The Bill, which was reintroduced towards the end of the winter session, not only did not accept the one useful suggestion of the Standing Committee (negating the compulsory step of a preliminary enquiry) but went on to eliminate even the investigative body from the Lokpal. Thus, the Lokpal would not only be selected and suspended by the government, it would also have to rely only on government-controlled investigative organisations for its investigation. Class 3 and 4 officers were still kept out of the Lokpal's ambit.
Those of us who worked on the mission with Anna Hazare had suggested 34 amendments to rectify the government's Bill, and we pointed out that four of these were critical to making the Lokpal a workable institution. These were that the selection and removal procedure should be made independent of the government; the CBI should be brought under the Lokpal's administrative control or, alternatively, the Lokpal should have its own investigative body; all government servants should be brought under the Lokpal's investigative ambit; and the procedure for investigation should be in line with the normal criminal investigation procedure. But the government was adamant in not accepting any of these either, and went on to bulldoze the passage of its Bill. It rejected all the amendments moved by the Opposition. The Opposition moved several of the amendments suggested by us, but the only amendment that the government accepted was one to allow State governments to decide when the Bill would be applied to them.
The Rajya Sabha witnessed a sordid drama. Several parties which had walked out in the Lok Sabha (the Samajwadi Party and the Bahujan Samaj Party) or had not moved any amendments there (the Trinamool Congress) moved amendments in the Rajya Sabha and their representatives delivered fiery speeches opposing the provisions of the Bill. When it became clear that at least three of the amendments (those relating to the selection and removal of Lokpal members, the CBI being brought under the administrative control of the Lokpal, and the deletion of the chapter on Lokayuktas in the States) were likely to be passed, the government engineered disturbances in the House, resorted to filibustering and prevented the amendments from being voted upon. And the House was prorogued with the Bill hanging in the air.
The government was repeatedly telling us that by proceeding with protests while Parliament was considering the Bill, we were showing contempt for parliamentary democracy. We had responded by pointing out that by overlooking the wishes of the people as expressed in numerous polls, surveys and referendums, all of which showed that more than 80 per cent of the people favoured the Jan Lokpal Bill, the government was showing contempt for the people. The drama in the Rajya Sabha showed that the government was not even willing to go by the will of Parliament. This gives rise to fundamental questions about the functioning of Indian democracy. Is this form of representative democracy allowing the will of the people to be reflected in policy and law-making, or is it being held hostage to parties and their leaderships to be determined by their own whims or corrupt considerations? Has the time come for us to rethink and deepen our democracy by putting in place systems where laws and policies would be decided by decisive inputs of the people (through referendums and gaon sabhas, or village councils) rather than only by such “elected representatives”? We hope that this fundamental issue would bring about an even broader public engagement than what has been witnessed during this Lokpal campaign.
(The author, a Senior Advocate, is a member of Team Anna.)