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The trouble with Lokpal-Anjali Bhardwaj & Shekhar Singh

Institutions the bill proposes to set up are not adequately independent of the government

The government is reported to be making efforts to seek a consensus amongst its allies and the opposition parties on the Lokpal Bill that is awaiting approval of the Rajya Sabha. People’s movements and some of the main opposition parties have objected to various provisions of the Lokpal and Lokayukta Bill, 2011, as passed in the winter session by the Lok Sabha.

The most critical problem with the bill is that the institutions proposed to be set up under it are not adequately independent of the government and others whom they are mandated to scrutinise. They can, therefore, not be expected to function without interference, pressure, and conflict of interest. To begin with, the bill provides for a selection committee for the Lokpal and Lokayuktas that is biased in favour of the ruling party, with three of the five members either being from, or nominees of, the government and the ruling party. Civil society groups had recommended that the selection committee should be better balanced with, say, one member each from the government, the main opposition party, and the higher judiciary.

Also, the investigations of complaints of corruption against Central public servants are envisaged to be undertaken by the Central Bureau of Investigation (CBI), which will not be independent of the government. Though the bill states that the Lokpal shall have powers of “superintendence and direction” over the CBI, experience has shown that such powers are meaningless without some administrative control.

Taking on board the government’s apprehension at putting the CBI totally under the administrative control of the Lokpal, people’s groups like the National Campaign for Peoples’ Right to Information have suggested that a balance could be maintained if two measures are adopted: one, all appointments, transfers and removal of Group A and B staff of the CBI are done with the concurrence of the Lokpal; and two, the chairperson or the concerned member of the Lokpal is made the accepting authority for the annual confidential reports of all those Group A and B officers who are involved in any case under the jurisdiction of the Lokpal. These provisions would ensure that the Lokpal is provided adequate powers of superintendence and administrative control. Fortunately, popular opinion is against a totally independent CBI, answerable to no one.

In the case of the Lokayuktas, the bill seems vague on the identity of the investigative agency at the state level. Unless a provision is made to set up state bureau of investigations along the lines proposed for the CBI, this responsibility would devolve down to the state police, which is entirely under the control of the state government, thereby compromising the independence of the Lokayuktas.

Further, the bill proposes that complaints against members of the Lokpal and Lokayuktas be filed with the Central or state government respectively, who would then decide which one is to be referred to the Supreme Court or the high court. The governments would also decide whether to suspend a member of the Lokpal or Lokayukta while such a complaint is pending with the court. Such a practice would leave the members of these institutions at the mercy of the government. Clearly, the need is to designate the Supreme Court and the high courts to be the authorities who would directly receive and process complaints against the Lokpal and the Lokayuktas respectively.

In its current form, another important concern is that the bill is not likely to be practically workable. The bill envisages that all of the nearly 60 lakh Group C (and D) Central government public servants will be covered by the Central Vigilance Commission (CVC). However, it does not specify how a CVC, located in Delhi, would receive complaints, conduct preliminary enquiries, and exercise superintendence and issue directions on investigations, against lakhs of employees who are spread across thousands of post offices and manned railway crossings, for example, in the villages of India. Would the CVC set up thousands of thanas in the villages and rural blocks of India, or would it expect villagers to come to Delhi, or to state or district headquarters, to lodge and pursue complaints? And would it be desirable to have thousands of new CVC (and Lokayukta) thanas all over the country? Would these prevent or promote corruption?

Again, the bill envisages that the Lokpal and the Lokayukta “shall not inquire or investigate into any complaint, if the complaint is made after the expiry of a period of seven years from the date on which the offence mentioned in such complaint is alleged to have been committed.” This seems to be unnecessarily restrictive, especially in relation to some of the large and complex scams that are exposed from time to time. Such a statute of limitation is entirely uncalled for.

The current bill invokes Article 253 of the Constitution that empowers Parliament to legislate on a state subject for which an international treaty has been signed. In the discussion in Parliament, various political parties objected to the Lokpal Bill being applicable to the states and providing for the setting up of Lokayuktas in the states. Subsequent to discussions in the Lok Sabha, though the bill was amended to provide states an option to adopt the Act, nevertheless the inclusion of states continues to be a point of contention.

Much of the corruption that affects the common person, especially the poor and marginalised, is in state government agencies. It would be meaningless, after so many years and so many aborted attempts, to finally create an anti-corruption agency that leaves out a majority of Indians, especially those who are in desperate need of its intervention. Given its numbers in the Rajya Sabha, and the passion that this issue raises, it is unlikely that the government can persist with the original proposal. However, it is important that the states not be left out altogether, but that Article 253 be replaced by Article 252 of the Constitution, which constitutionally mandates that states have an option on whether they want to adopt the Act.

The writers are members of the working committee of the National Campaign for Peoples’ Right to Information