Lost opportunities

How the government's Lokpal Bill-2011 evolved, and the provisions that are bound to weaken it.

IN writing the history of Lokpal legislation in India, the Lokpal and Lokayuktas Bill, 2011, may have to be split into several chapters. Of these, the events connected with the non-passage of the Bill in Parliament in December 2011 may well be suitably titled Opportunities Missed & Focus Derailed.

An observer has only to look at the various stages in the evolution of this Bill to understand the proposed changes the government had accepted or rejected, which led to the uncertainty about its passage and indeed its future.

On December 22, the government introduced the Bill along with the Constitution (116th Amendment) Bill in the Lok Sabha. This Bill incorporated some of the recommendations of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice. This was a completely new Bill as the government had withdrawn its previous Lokpal Bill, which it introduced in the Lok Sabha on August 4, 2011, and later referred to the Standing Committee. The Standing Committee tabled its report on December 9, 2011.

The August Bill did not propose to confer constitutional status on the Lokpal. The Standing Committee recommended constitutional status so that the Lokpal had higher stature and increased legitimacy. The committee believed that constitutional status would enhance the legal and moral authority of the Lokpal institution and also insulate the basic principles of the Lokpal from the vicissitudes of ordinary or transient majorities.

It is inconceivable, the committee stated, that while parties are in favour of the institution of Lokpal in principle, as a statutory body, parties would not agree with equal alacrity for the passage of a constitutional amendment Bill.

Yet, the Lok Sabha, which passed the Lokpal and Lokayuktas Bill with a few amendments, rejected the Constitution (116th Amendment) Bill, which required two-thirds majority of the House present and voting for its passage.

The object of the Constitution Amendment Bill is laudable as it seeks to create an autonomous and independent Lokpal at the Centre and Lokayuktas in the States with powers of superintendence and direction over investigation and prosecution of public servants accused of corruption. Yet, it failed to secure the requisite support in the Lok Sabha because members found a huge gap between its object and the provisions of the Lokpal and Lokayuktas Bill.

The Standing Committee also recommended constitutional status to the grievance redress mechanism and a separate law to guide citizens on procedural matters and to acknowledge a citizen's complaint within a fixed time frame.

The government introduced the Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2011, in the Lok Sabha on December 20, but did not see merit in according constitutional status to it.

During the debate in Parliament, the opposition was critical of the government's control over the selection and removal of members of the Lokpal. The Congress member of the Rajya Sabha and Chairman of the Standing Committee, Abhishek Manu Singhvi, argued that it was usual for the government to enjoy a slight majority in selection committees meant to choose members of a constitutional body.

The Leader of the House in the Lok Sabha, Pranab Mukherjee, suggested that just because the government appointed constitutional functionaries, it did not mean it could influence them.

But the Standing Committee report shows that it wanted to dilute the provisions with regard to selection and removal in the Bill that was introduced in August. That Bill had proposed a nine-member selection committee, five of whom would have been government nominees. The Standing Committee recommended a four-member selection committee comprising the Prime Minister, the Speaker of the Lok Sabha, the Chief Justice of India (CJI), an eminent Indian nominated unanimously by the Comptroller and Auditor General (CAG), the Chief Election Commissioner (CEC) and the Chairman of the Union Public Service Commission (UPSC), and the Leader of the Opposition in the Lok Sabha. The December Bill proposes five members, of whom three should be government nominees the Prime Minister, the Speaker, the Leader of the Opposition in the Lok Sabha and the CJI or a judge of the Supreme Court nominated by the CJI, and one eminent jurist nominated by the President. Had the government accepted the Standing Committee's recommendation, it could have dented somewhat the opposition's criticism.

Again, on the question of removal of members of the Lokpal, the standing committee had recommended that a citizen should be allowed to approach the Supreme Court directly with a complaint, rather than on the basis of a reference from the President, as required under the August Bill. The committee had also suggested that if the President did not refer a citizen's petition the reasons should be given. The Bill of December rejects both these recommendations.

Clearly, the government's eagerness to control the appointment and removal of Lokpal members is at odds with the object of the Constitution Amendment Bill, which is to make the Lokpal and the Lokayuktas independent and autonomous of the government. It is fair to argue that constitutional authorities, once appointed, tend to become autonomous in their functioning. But as the movement for a strong Lok Pal was born out of a strong distrust of the government, the government must have gauged that such provisions would be looked at with intense suspicion.

Composition

The composition of the Lokpal is another contentious issue. Abhishek Manu Singhvi claimed in the Rajya Sabha that it was wrong to consider the requirement that at least 50 per cent of the nine-member Lokpal belong to the Scheduled Castes/Scheduled Tribes/Other Backward Classes/women/minorities as reservation. He argued that the provision was only meant to ensure diverse representation, considering the pluralistic diversity of India.

He may well be right. But his claim was contrary to what Minister of State for Personnel, Public Grievances and Pensions V. Narayanasamy said while moving the motion for consideration of the Bill in the Rajya Sabha. He said the provision was incorporated in response to the demands from various political parties that there should be reservation for these sections. The Bill of August provided that the Lokpal would have its own investigation and prosecution wings. The Standing Committee, however, sought to dilute this by recommending instead that the Lokpal conduct a preliminary inquiry, after which the Central Bureau of Investigation (CBI) would investigate. Also, the CBI would have autonomy over its investigation. The committee also proposed that the Lokpal will have a supervisory role over the CBI in cases relating to Group A and B officers.

The Bill of December further diluted these recommendations. The Lokpal, it says, shall refer a preliminary inquiry against Group A, B, C and D employees to the Central Vigilance Commission (CVC). The Bill further says that after conducting the inquiry, the CVC shall submit a report to the Lokpal in the case of Group A and B employees and proceed according to specified procedure in the case of Group C and D staff. The CVC, according to the current Bill, shall send periodic reports to the Lokpal on its cases.

The Bill adds that if a prima facie case exists against a public servant, the Lokpal may refer it to the CBI for investigation. Also, it may refer a case for preliminary inquiry to the CBI (other than Group A, B, C and D officers). The Bill also provides that the Lokpal shall exercise general superintendence over the CBI (similar to the CVC's supervision currently). These additional dilutions in the later Bill, according to critics, reduce the Lokpal to just a post office.

The Standing Committee's recommendations in the inquiry and investigation aspects, too, have been diluted. The committee recommended that the Lokpal conduct only the preliminary inquiry and that it be authorised to initiate it suo motu. In such cases, the inquiry would have to be done by a five-member Lokpal Bench that is not connected with the suo motu initiation. More important, the accused would not get an opportunity to be heard at this stage, though the Bill of August allowed that. The later Bill rejects both these recommendations and sticks to the August version, which provided that the Lokpal could initiate an inquiry only on the basis of a complaint by a citizen. The only concession the Bill makes is that the Lokpal shall have its own inquiry wing to conduct a preliminary inquiry on a complaint it has received and has decided can be inquired into.

Crucial amendments

The government's Bill underwent three crucial amendments after its introduction and before its passage in the Lok Sabha, and all three have the potential to weaken the Lokpal further. First, the Bill as introduced made it clear that it would be applicable to the States and that it might be notified on different dates for different States. The government then amended the Bill to say that it shall be applicable to the States only if they give their consent. Although meant to address the concerns of States over the Bill's provisions, the amendment can make the Act a non-starter if the States choose not to give their consent.

Secondly, the Bill as introduced in the Lok Sabha insisted that investigations must be completed within six months and that this period might be extended by six months for reasons to be recorded in writing. The Bill did not provide for further extensions. However, the amended Bill as passed by the Lok Sabha allows extension of six months at a time for reasons to be recorded in writing and does not limit the number of extensions.

Third, the Bill as introduced in the Lok Sabha required that the Lokpal send a copy of its investigation report to the Competent Authority (the Lok Sabha, the Prime Minister, the Speaker or Chairman of the Rajya Sabha), which would table it in the House and communicate the action taken to the Lokpal within 90 days. The Bill as amended and passed by the Lok Sabha has removed the requirement of reporting to the Lokpal on action taken. An element of mutual checks and balances to ensure accountability has been inexplicably removed.