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LATEST NEWS UPDATES | The search for a perfect Bill by Amitabh Sinha

The search for a perfect Bill by Amitabh Sinha

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published Published on Aug 28, 2011   modified Modified on Aug 28, 2011

Over the last few days, as a desperate government tried to tide over the Lokpal Bill crisis, it received over half-a-dozen variants of the draft legislation. On Saturday, both Houses of Parliament took up the subject and though the debate was mostly confined to the Jan Lokpal Bill, it made the political point that while an effective law should be devised to tackle corruption, Parliament’s supremacy must be maintained. The three critical issues raised by Anna Hazare and his team—of bringing the lower bureaucracy under the Lokpal’s ambit, having a common bill for the Centre as well as states and inclusion of a Citizen’s Charter aimed at efficiency of government services—too were discussed with the sense of the House clearly endorsing Hazare’s standpoint.

Parliament’s backing, however, is only in a generalised sense and there is much more to the issues involved. The government will have to strike a fine balance in the coming days in codifying the demands made by Team Anna while ensuring that their inclusion in the government Lokpal Bill does not overlap with other provisions of the Constitution.

* Inclusion of lower bureaucracy in Lokpal

In the eighth meeting of the Joint Drafting Committee, the government had at length voiced the concern that giving overriding powers to the Lokpal would not only leave them devoid of any control over the bureaucracy but also make the new institution an unwieldy one since the total number of government servants (Centre and state) amounted to 1.4 crore. Hence, the decision to let the Lokpal deal only with the higher bureaucracy was taken. “Even if cases are registered against only one per cent employees, the Lokpal would have to deal with 1.4 lakh cases. How can justice be done in such a situation, that too within a stipulated time,” asked Parliamentary Affairs minister Pawan Bansal.

Team Anna, however, contends that a 15,000-employee base for the Lokpal would suffice, based on the international norm of having one anti-corruption personnel for every 200 employees.

The draft Lokpal of the NCPRI led by Aruna Roy too supports the government view on this and says that Lokpal should restrict itself only to fighting corruption at high places. It, however, does include the office of the Prime Minister like the Jan Lokpal Bill does. The NCPRI draft also proposes a similar structure for the office of Lokayukta in the states and has suggested that the lower-level bureaucracy in the states should be covered under a strengthened and remodelled CVC.

Government managers have contended that one of the ways to deal with corruption in the lower bureaucracy can be to bring it under the purview of the CVC. Presently, the CVC looks into corruption cases only in the case of Group A officers and above but the CVC Act can be amended to include Group B, C and D government employees too, a suggestion that is backed by the NCPRI.

* Single Lokpal Bill for Centre and States

The reluctance to have a common Bill is not so much about the creation of institutions at the state-level as that of interference with the federal structure of the polity. Of course, the original Lokpal and Lokayukta Bill of 1968 did propose a comprehensive Bill covering both Centre as well as states. But over the years, states have become more sensitive to what they feel are attempts by the Centre to encroach on their territory.

Lokayuktas already exist in 18 states in the country. Yet, Pranab Mukherjee told Team Anna in one of the joint drafting committee meetings that several chief ministers had objected to providing lokayuktas through the same Bill.

In support of its demand, Team Anna maintains that corruption linkages cut across state boundaries and administrations and unless there is a single legislation to deal with it, the effort gets diluted. They insist that this can be done along the lines of the RTI Act which provides for setting up state information commissions under a single Act. The states only have the power to appoint CIC and other members of the Commission. On Saturday, Congress member Sandeep Dikshit conceded that the setting up of lokayuktas was possible either through an enabling provision or a model Bill that states could choose to adopt.

* Citizen’s Charter in government departments

An earlier version of the draft Lokpal Bill of the government did contain a Citizen’s Charter under Clause 47 which provided for prescribing stipulated timelines for every service provided by government departments. During the joint drafting committee meetings too, government representatives and Team Anna agreed on it in the initial stages itself, though the latter was not satisfied as it wanted clear penalty clauses to act against slack officers. But interestingly, when the government Bill was introduced in the Lok Sabha on August 4, the chapter on Citizen’s charter was missing.

Law Minister Salman Khurshid contends that the decision to remove it was taken as it did not have any relevance in the Lokpal Bill. “It was there without any purpose. Therefore, the decision was taken that the Citizen’s Charter should be made part of the Public Grievances Redressal Bill,” he said. The critical point, however, is that inefficiency, tardiness, complacency and delays because of infrastructural constraints cannot be equated with corruption. The NCPRI also disagrees with the Jan Lokpal Bill in this regard, suggesting the setting up of a yet another Lokpal-like Grievance Redress Commission to address inefficiency in the government.

Differences

There are other sticky points like that of whether action of MPs inside Parliament should be subjected to the scrutiny of the Lokpal. Team Anna has been in favour, arguing that taking bribe to vote or speak in Parliament strikes at the very foundation of democracy. The government, however, has stoutly opposed it on the ground that such a move would clash with Article 105(2) of the Constitution, which provides protection to MPs inside Parliament.

Not surprisingly, this was supported on Saturday overwhelmingly by both Houses of Parliament.

Another issue is that of whether the Lokpal should have the powers to recommend the transfer, suspension or even removal of officers found guilty or even suspected of wrongdoing, so that they are not able to influence the process of investigation. The government has maintained that such a decision will infringe on the powers of the administration and result in shifting of power from the government to the Lokpal. It will also conflict with Article 311 and 320(3)(c) of the Constitution. Similarly, powers to recommend the removal of ministers clash with Article 75 of the Constitution, say government managers. The decision of continuation of a minister must be taken by the Prime Minister keeping in view that the government is answerable to Parliament, they say, adding that constitutional prerogatives should not be diluted. Team Anna maintains that in several states, lokayuktas have made recommendations for transfers which have gone unheeded, hence the need to empower the Lokpal.

On two other sticky points—inclusion of the Prime Minister and the judiciary under the Lokpal—there now seems to be general consensus among Team Anna, government and the political parties. While the Prime Minister is likely to be brought under the ambit of the Lokpal (with only his role in context of national security being exempted), the judiciary will be dealt separately by a Judicial Accountability Bill.

Suggestions from other groups/individuals

Besides the three key draft Bills, the government has also received a number of suggestions/draft Bills from prominent citizens and groups. For instance, former Chief Election Commissioner J M Lyngdoh has proposed that all vigilance agencies, including the CVC, should be placed under the superintendence of the Lokpal. He is also in favour of allowing Lokpal to investigate and prosecute everyone without any approvals including MPs inside Parliament.

Another group of eminent citizens, including Justice Santosh Hegde, P Shankar and Pratyush Sinha, had met separately and come up with their draft proposal. Their draft seeks powers to the Lokpal to issue interim orders to stop or even alter any government programme while dealing with corruption. On the screening committee to select the Lokpal, their draft proposes a panel of 15 members who are heads of institutions like IITs, editors of two national dailies, President of the Supreme Court Bar Association and other professional bodies. They also want candidates to be subjected to public hearings along the lines of confirmation hearings in the United States. The group has also suggested that offices of the Lokpal should be declared as police stations enabling them to register cases and the Lokpal and its officials declared as police officers under Section 36 of the CrPC.

Justice Rajinder Sachar too has given his own suggestions. Among the notable ones is to disqualify MPs and MLAs for a period of six years, once their guilt is established by Lokpal in a corruption case—in the same manner as under Section 8 of the Representation of the People Act, 1951. He has also proposed that the Lokpal be authorised to impose a penalty to recover any amount found to have been lost by the action of legislators or ministers.

The NCPRI Bill talks about a basket of measures to curb corruption and wants as many as five Lokpal-like institutions to be set up—each for a specific purpose—instead of just one overarching Lokpal that Team Anna has been asking for. Amongst the five, is the Lokpal for higher bureaucracy—starting from Group A officers up to PM. The second is the Central Vigilance Commission for lower bureaucracy and the third is for the judiciary, a fourth to protect whistleblowers and a Grievance Redressal Commission.

In a number of ways, the NCPRI Bill is a compromise proposal between the Anna Hazare model and the government’s formulation.

What next?

After Saturday’s debate in Parliament, action is likely to shift back to the Standing Committee to which the Lokpal Bill, as introduced by the government, has been referred. At last count, there are as many as nine versions of the Lokpal Bill, submitted by different sections of people. All these drafts are likely to be placed before the Standing Committee. As is common practice, the Standing Committee may then invite relevant stakeholders to depose before it and put forward its views or suggestions to improve the Lokpal Bill. After thorough deliberations, the Standing Committee will then present its recommendations back to the Lok Sabha. This exercise may take months. A fresh debate will happen in both Houses of Parliament which may or may not accept the recommendations of the Standing Committee. The Bill will have to be passed by both the Houses for it to become a law.

Lokpal elsewhere

The idea of a watchdog institution such as the Lokpal has been borrowed from the concept of ombudsman in countries such as Finland, Norway, Denmark, Sweden, UK and New Zealand. At present, about 140 countries have the office of the ombudsman. In most countries, however, the ombudsman is under parliamentary control, unlike the proposed Lokpal where funding has been proposed directly from the Consolidated Fund.

In countries like Sweden, Denmark and Finland, the office of the ombudsman can redress citizens’ grievances by either directly receiving complaints from the public or suo moto. The ombudsman in Sweden and Finland has powers to prosecute erring public servants.

Finland has one of the most powerful ombudsman laws, allowing the office of the parliamentary ombudsman to oversee legality of decisions of the government, ministers as well as the President of the Republic. A two-thirds vote in the Finnish parliament is needed to remove their parliamentary ombudsman.

In the UK, the office of the Parliamentary Commissioner can receive complaints only through MPs to whom citizens can complain. The UK system also exempts various offices, including that of intelligence and security establishments. Also, decisions relating to external affairs are out of the ombudsman’s purview.

Interestingly, the US does not have a federal ombudsman agency with the function of handling complaints against public authorities resting with the members of Congress.

The Indian Express, 28 August, 2011, http://www.indianexpress.com/news/the-search-for-a-perfect-bill/838089/

Tagged with: lokpal bill



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