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The official lokpal bill makes a false promise by Manoj Mitta

Besieged as it is by a spate of scams, the Centre has revived the 40-year-old proposal of setting up a national ombudsman called the Lokpal to probe political corruption. But, far from overcoming the existing deficiencies, the latest draft Bill – which could be promulgated any time soon as an ordinance - provides a legal veneer to them so that crooked politicians will continue to enjoy almost as much impunity as before. 

All critical decisions in the proposed anti-corruption regime will remain firmly in the hands of the ruling dispensation, although that is the main cause for the widespread impunity for scams involving politicans. Nobody can directly complain to the Lokpal against any MP. Everything will have to routed through the presiding officer of the House to which that MP belongs. The Lokpal in any case will not have an independent investigating agency and it can only make recommendations to the so-called competent authority, who is himself purely a political creature. 

The farcical intent behind the Bill is even more evident from this irony: While it can take no action against scamming politicians, the Lokpal will be empowered to award summary punishment to those who are found to have lodged false complaints. This is quite apart from the fallacy on which the entire Bill is based: that politicians and bureaucrats indulge in corruption separately and should therefore be probed by separate bodies. 

Despite such glaring infirmities in its proposed scheme, the Manmohan Singh government has seized the moral high ground by bringing the Prime Minister under the ambit of the Lokpal. But this will make little difference to probity in public life as the Lokpal's powers with regard to the Prime Minister are even more restricted than they are in dealing with lesser politicians. 

Consider the insidious ways in which the Bill meant to establish an accountability mechanism is actually designed to help crooked politicians get off the hook. 

The Lokayukta has no power to initiate inquiry on its own or receive complaints directly from the public: In a bid to keep the accountability process on tight leash, the draft Bill bars the Lokpal from initiating any inquiry suo motu. All inquiries will have to be on the basis of complaints, that too only those that have been vetted by politicians. The Lokayukta cannot receive complaints directly from the public. Depending on the House to which the MP belongs, the complainant will have to approach either the speaker of the Lok Sabha or the chairperson of the Rajya Sabha. Only the complaints that are forwarded by the presiding officer of either House would be probed by the Lokpal. Besides placing undue restrictions on the discretion of the Lokpal, this provision will make the institution vulnerable to charges of being politically motivated as the presiding officers of the two Houses are often appointees of the ruling party or coalition. 

Politicians themselves will decide the fate of the Lokayukta's inquiry report: After holding its inquiry on a complaint received by it, all that the Lokpal can do is to submit its report to the competent authority. Since the Lokpal proposed by the government is no more than an advisory body, its findings and recommendations are not binding on the competent authority. In the case of ministers, the competent authority is the Prime Minister. This means that somebody like Manmohan Singh, hobbled as he is by coalition compulsions, could well have rejected any report that the Lokpal could have given on the 2G scam against his (now former) minister A Raja. The arrangement made for dealing with Lokpal reports against the Prime Minister or MPs is equally dependent on political vagaries. For, the competent authority in their case is either the Lok Sabha or the Rajya Sabha, depending on the membership of the person concerned. 

In the absence of police powers, the Lokpal can conduct only preliminary inquiries Since it is not declared to be a police station, the Lokpal cannot register an FIR. Therefore, all the proceedings conducted by the Lokpal will be in the nature of a "preliminary enquiry", which is normally held prior to the actual investigation under the criminal procedure code. The Bill is however silent on what will happen to the Lokpal's report after it is accepted by the competent authority. Given that the Lokpal conceived by the government Bill has not been conferred prosecution powers, there should have been clarity on who will take over the matter after the competent authority's approval and whether the ombudsman's report can be turned into a charge sheet in the court. 

An inquiry pending before the Lokpal could be cited as an excuse to bar CBI investigations The Bill is silent on the role of the CBI, which is the existing mechanism for investigating and prosecuting cases of political corruption. This legal lacuna could well be used as an excuse for barring CBI investigations when an inquiry is pending before the Lokpal. If so, the Bill might end up increasing impunity for corrupt politicians as they could be spared the odium of turning into accused persons in a CBI court. 

Draconian sanctions for false complaints against politicians The Bill makes no bones about its bias against whistleblowers and public-spirited citizens. Even as it disallows the Lokpal from filing an FIR or a charge sheet against corrupt politicians, the Bill provides stringent sanctions for complaints that have been found to be false or malicious. The Lokpal in such an event is empowered to try the complainant summarily and, if found guilty, punish him with imprisonment ranging from one year to three years. The message is loud and clear: while there is no assurance of any criminal action against corrupt politicians, the complainant will have to pay dearly if he is not in a position to counter the explanation offered by the other side. 

The Lokpal will have no jurisdiction over the bureaucrats complicit in the same scam Since the Lokpal will not be replacing the Central Vigilance Commission, every scam will have to be probed separately by the two bodies which have exclusive jurisdiction on politicians and bureaucrats, respectively. Flying in the face of the collusion that is often the norm, the CVC will limit itself to probing bureaucrats while the Lokpal will not look beyond the complicity of politicians. Such a statutorily-forced blinkered approach might work very well to the advantage of the accused persons as any criminal case would have to be proved beyond reasonable doubt for securing anybody's conviction. There could be disputes between the two bodies over the custody of case records or, worse, they could arrive at conflicting conclusions. 

Packing the Lokpal with retired judges to make the judiciary go soft on politicians The Lokpal envisaged by the government will consist of three members and all of them are required to be retired judges. Such restriction on the membership of the Lokpal could aggravate the trend of retiring judges becoming vulnerable to government pressures as they look forward to plum post-retirement assignments. 

Selection of Lokpal members entirely by political leaders The members of the Lokpal are proposed to be selected by a committee consisting entirely of political dignitaries: the Vice President, Prime Minister, leaders of both Houses, leaders of Opposition in both Houses, law minister and home minister. In the current crop, all of them, barring the Vice President, are politicians, the very community falling in the jurisdiction of the Lokpal. Since the committee is loaded in favor of the ruling party, it will effectively make the final selections. 

Special limitations on the Lokpal's jurisdiction over the Prime Minister Though the Manmohan Singh government made much of bringing the Prime Minister under the ambit of the Lokpal, it comes with a caveat. The ombudsman is barred from probing any allegation against the Prime Minister in so far as it relates to huge and widely worded subjects such as "national security, maintenance of public order, national defence and foreign relations". This means that defence deals, which are notoriously prone to political corruption, are out of bounds for the Lokpal.