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Composition of the Lokpal
An ideal composition of the Lokpal should have consisted of a broad representation including mem¬bers from the judiciary and the Legislature. Both Bills are unanimous on the fact that the main body of the Lokpal would have a majority representation from the Judiciary which certainly is a step in the right direc-tion. However both Bills diverge on the composition of the selection committee; with the government Bill proposing a majority of political members whereas the Jan Lokpal Bill proposing a majority of Judges and Jurists in the selection committee. While we certainly agree that for reducing political influence, the number of politicians in the selection committee must be reduced, the view of the Jan Lokpal Bill cannot be endorsed for certain specific reasons:
1. Section 6(2(2)) of the Bill prohibits a charge-sheeted person from being a member of the Lokpal. Charge Sheet has been defined by the Supreme Court in K.Veeraswami Vs. Union of India as "The charge-sheet is nothing but a final report of police officer under Section 173(2) of the Cr. P. C". This implies that charge sheeting a person does not make him guilty. Thus this Section is a clear violation of Article 14 which confers the right to equality to every citizen.
Such a law also violates the basic legal right of an accused elucidated by the Latin maxim "Ei incumbit probatio qui dicit, non qui negat" i.e., a person is innocent until proven guilty. Even the Law commission in its 180th report has stated "...that an accused is presumed to be innocent till he is proved to be guilty". Only courts have the right to decide if a person is guilty. Thus it would have been better if the word 'convicted' instead of 'charge-sheeted' had been used as it has been used in the government draft of the Bill under section 3(4(ii)).
2. Ambiguous framing of Section 6(4) leaves a lot of scope for interpretation, which in turn most certainly would require the continuous intervention of the judiciary. This may also promote nepotism and favouritism as any person can be appointed as a member and can be proved to be a person of 'Unimpeachable Integrity'. Words such as 'Unimpeachable Integrity', if used, should have been properly defined and proper tests should have been laid down for the same to rule out any discrepancy or its usage should have been avoided as the government does.
The government Bill also defaults on certain grounds regarding the composition of the standing as well as the select committee by making provisions of reservation in the Bill (Section 3(2(b)) and proviso to Section 4(3)). There is undoubtedly an urgent need to bring the weaker sections of the society to the forefront, but such provisions are mainly a vain attempt by the government playing vote bank politics. One fails to understand how reservations for weaker sections in an anti-corruption body will bring any change to their social and economic status.
Apart from the lacunae mentioned above, the qualifications and the procedures mentioned in the government Bill as well as the Jan Lokpal Bill are stringent enough and do not need further modification. Both the Bills could also have included provisions making it mandatory for the selection committee to display the name of the nominees on the website of the Lokpal to solicit response from the public. While we do agree that internet might not be the most widespread medium, it certainly is the most effective and the best medium that we have.
CBI and CVC under Lokpal
Another major bone of contention is the inclusion of CVC and CBI within the institution Lokpal. CBI and CVC are the major Anti-corruption bodies today, which are practically toothless when it comes to investigation and prosecution of the corruption charges.
The appointment of the higher authorities in CVC is directly or indirectly done by the government. The CVC depends wholly on other investigative agencies, mainly the CBI for its investigative purposes. Also it is mainly an advisory body.
The CBI is controlled by Department of Personnel and Training which is under the control Prime Minister's Office. Besides CBI officers' promotions, transfers and post retirement benefits are subjected to political influence which acts as a constraint in conducting a fair enquiry. Moreover for any investigation, the CBI needs a prior sanction of the government. Thus, both CBI and the CVC are mere puppets in the hand of the governments. For example, in the Bofors Scandal, the CBI was alleged to have been in collusion with the government, thus ruining the entire case.
The Jan Lokpal Bill envisages repealing the Central Vigilance Com-mission Act and merging the CVC constituted under it to itself and also transferring to itself the anti-corruption wing of the CBI. But the govern¬ment's Bill provides for referring complaints against public servants of groups A, B, C and D as given under Section 2(c) of the Prevention of Corruption Act to the CVC and allows conducting enquiry against public servants through other agencies including CBI, but not converging these bodies to the Lokpal.
Both these approaches have their own problems. Keeping the CBI and CVC out of the Lokpal would mean that their independence continues to be compromised. But repealing the Central Vigilance Commission Act and merging the CVC with the Lokpal would mean that the entire machinery would have to be set up again. Further, the question rises as to what would happen to the ambit of the Lokayuktas if the CVC is to be merged in to the Lokpal. Hence, it would be better to merge the CVC in a manner such that the members of the CVC become members of the Lokpal and the Lokayuktas. But the CBI's functions should be clearly split into two parts, one dealing with anti-corruption crimes and the other dealing with investigation of all other crimes. This anti-corruption unit should be the exclusive domain of the Lokpal or Lokayuktas as the need arises.
Concentration of Powers
Most of the Powers entrusted to the Lokpal, as per the Jan Lokpal Bill, are highly centralised. It provides for an internal mechanism for entertaining any complaint against the employees of the Lokpal. Section 27(1) bars any other authority from investigating any complaint against a Lokpal employee. While this may be crucial for mamtaining independence of the Lokpal, it raises serious ques¬tions regarding the accountability of employees of the Lokpal. But the government draft of the Bill bars the Lokpal to enquire against its Chair¬man and members itself under section 37(1) and provides under section 37(2) that the Chairman and members can be removed by the President after an enquiry has been made by the Supreme Court.
Section 15(1) of the Jan Lokpal Bill states that "Subject to the provisions of this Act, any person may make a complaint under this Act to the Lokpal." Also, Section 8(2) and Section 14(6) of that Bill authorize the Lokpal to take suo motu actions, which the government draft does not prescribe
To realize such lofty objectives, another mammoth bureaucratic setup with thousands of educated employees will have to be established. India faces a massive staff crunch when it comes to both the judiciary and bureaucracy. The total number of judges in various High Courts is 630 against the sanctioned strength of 895 and in case of high level bureaucracy, almost 1155 posts are vacant. More¬over, the budget of this bureaucratic setup is proposed to be restricted to 1% of the G.D.P. per annum, which is equal to about Rs. 75000 crore. With such a large shortage of manpower and such a huge budget, the prospect of creating such a huge institution is highly impractical. It is in this context that Arundhati Roy has said that "It (Lokpal) will function as an independent administration, meant to counter the bloated, unaccountable, corrupt one" and that creation of such an institution will amount to creation of 'Two Oligarchies instead of one'.
Additionally, even though the integrity of those at the helm o f affairs can be ensured to some extent, guaranteeing the integrity of those thousands of people employed at all levels in this entire setup are practically impossible.
The only way out would be to have a two tier institution one at the centre (Lokpal) and the other at the state level (Lokayukta) as clearly enumerated in the Government draft. Lokpal should only deal with the high level corruption cases involving members of Parliament, corporate bodies, central government's bureaucracy and Chief Ministers. On the other hand, the Lokayukta should handle smaller graft cases involving state governments' bureaucracy, NGOs and members of state legislature. In fact, the first Administrative Reforms Commission (1966) recommended the same. It must also be noted that the institution of Lokayukta already exists in 18 states. Hence infrastructure for setting up a Lokayukta on the lines of the Lokpal will already exist in these states. But the problem that arises in this respect is whether it is constitutionally valid for the central government to frame a law that can be applicable to state governments without violating the federal structure. Any law made by the central government in contravention of Article 246 or of Article 248 of the Constitution would be unconstitutional per se.
Mrs. Sushma Swaraj, during her Lok Sabha Speech had suggested Article 252 as a remedy to this quandary. Article 252 allows the Parliament in consultation with any two states to make laws on any subject in the state list which the parliament could not have ordinarily done so. But such a solution would be ineffective as the law so framed would not be binding on any other states.
A much more preferable option would be Article 253 of the Constitution. India is a signatory to the United Nations Convention against Corruption (UNCAC). Article 253 empowers the central government to enact any legislation in pursuance of UNCAC in both the Centre and the State. This article will enable the government to establish a uniform system of the Lokayuktas without disturbing the federal fabric of the nation.
Ambit of the Lokpal
Prime Minister and Chief Ministers—The government originally wanted the PM to remain out of the purview of the Lokpal as it believed that it would amount to compromising the authority of the PM's office. But the current position is that PM is included with but with certain riders. The Jan Lokpal Bill, on the other hand, advocates a much stringent stance, providing only a minimum safeguard against frivolous complaints.
A Prime Minister is the represen-tative of the people and actively participates in electoral and political functioning of the state. Currently, PM can be investigated by CBI, an investigative agency which is not independent. Therefore bringing PM under the surveillance of an independent body is the need of the hour. The basic structure of our Constitution does not exclude the Prime Minister from any scrutiny by investigating agency. Under Article 361(2), President of India and Governors of different states, who do not exercise direct executive powers, are bestowed with immunity from criminal proceedings during their tenure. On the other hand, no such immunity has been explicitly granted to Prime Minister.
Ultimately, the moot question is whether bringing the PM under any such scrutiny would result in endangering his authority. The Fourth Report of the Second Administrative Reforms Commission was of the view that keeping the Prime Minister out of the purview of the Lokpal is crucial to maintain stability of the government as there is no provision of President's rule at the centre. However, given the current state of affairs, the faith of the public in the government will significantly improve if the Prime Minister is included under the ambit of the Lokpal. So, he should be brought within the domain of the Lokpal.
