The omission of maladministration in the Lokpal Bill, despite it having found a place in all Lokpal Bills from 1968 to 1985, is deliberate.
They use the snaffle and the bit all right/But where is the bloody horse?
WHERE indeed is that bloody horse? As Roy Campbell rightly asked. The Indian political class and the bogus and rude elements who claim to represent India's civil society have been debating for months the dimensions of the stable, the qualifications of the syces and regular supply of food, but they have not given the slightest of thought to the heart of the matter the stable simply cannot hold any horse.
For months on end we have heard arguments on the process for the appointment of the Lokpal, the ambit of its jurisdiction over public servants from the Prime Minister downwards, its control over the Central Bureau of Investigation (CBI), and so on. But what exactly is its main function? That is set out in an obscure definition in clause 2 (e) of the Lokpal and Lokayukta Bill, 2011, as passed by the Lok Sabha on December 27, 2011. There was no discord on this fateful provision.
It reads thus: Complain means a compliant, made in such form as may be prescribed, alleging that a public servant has committed an offence punishable under the Prevention of Corruption Act, 1988.
But that Act itself prescribes a procedure for the investigation and punishment of offences under it. Where, then, is the need to set up a parallel machinery in respect of these very offences at enormous expense of public time and money, not to forget the bitter debate on this wasteful course when issues of great moment await debate and legislation.
Chapter II of the Act of 1988 provides for the appointment of special judges to try the offences. The Bill of 2011 provides in Chapter IX for the establishment of special courts to hear cases under the Act of 1988 or the act to be passed.Flaw exposed
The Lokpal will need the services of the police for investigating allegations. The Lokpal will have an inquiry wing (Chapter III) and a prosecution wing (Chapter IV). Remember that this pooh-bah of an institution will comprise a Chairman plus up to eight members.
Clause 23 exposes the flaw: 23(1) No sanction or approval of any authority shall be required by the Lokpal for conducting a preliminary inquiry or an investigation on the direction of the Lokpal, under Section 197 of the Code of Criminal Procedure, 1973, or Section 6A of the Delhi Special Police Establishment [DSPE] Act, 1946, or Section 19 of the Prevention of Corruption Act, 1988, as the case may be, for the purpose of making preliminary inquiry by the inquiry wing or any agency (including the Delhi Special Police Establishment) or investigation by any agency (including the Delhi Special Police Establishment) into any complaint against any public servant or for filing of any charge sheet or closure report on completion of investigation in respect thereof before the Special Court under this Act.
2) A Special Court may, notwithstanding anything contained in Section 197 of the Code of Criminal Procedure, 1973, or Section 19 of the Prevention of Corruption Act, 1988, on filing of a charge sheet in accordance with the provision of sub-section (7) of Section 20, take cognisance of offence committed by any public servant.
If the sanction provision under Section 197 of the CrPC and Section 19 of the 1988 Act can be rendered irrelevant in this case, why not discard them completely. It is a fundamental principle of English criminal law that except in special cases, any person can set in motion the machinery of criminal law. A.P Herbert did it to enforce liquor laws on the premises of Parliament.Requirement of sanction
It was in India that the Raj imposed the requirement of sanction to protect its minions. The effect is that at the outset the government itself will decide whether its official can be prosecuted or not in a court of law.
For over a century the Privy Council, the Federal Court, the Supreme Court and umpteen high courts have wrestled with the words while acting or purporting to act in the discharge of his official duty.
The debate is not yet over. The Supreme Court has fought shy of holding these provisions unconstitutional. If the Bill becomes law, Section 197 of the CrPC will suffer another infirmity. It will violate the fundamental right to equality before the law. Only cases before the Lokpal will not need the sanction, others will for the very same offence.
But Clause 23 also renders Section 6A of the DSPE Act irrelevant; but only for cases before the Lokpal. And thereby hangs a sorry tale that tells us a lot about our political class, right across the political divide. It is this Act of 1946 which still constitutes the charter for the CBI. Hence in court proceedings, the CBI is referred to as the DSPE. Executive instructions by the Government of India directed the CBI not even to hold a preliminary inquiry in respect of a certain class of public servants. As soon as the Single Directive was struck down as void by the Supreme Court in the hawala case, it was shamelessly reintroduced, this time in a piece of parliamentary legislation as Section 6A of the DSPE Act. It reads thus:
Section 6A Approval of Central government to conduct inquiry or investigation [Inserted by Act 45 of 2003. Section 26 (w.e.f. 11-9-2003)]
(1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988, (49 of 1988) except with the previous approval of the Central government where such allegation relates to -
(a) the employees of the Central government of the level of Joint Secretary and above; and
(b) such officers as are appointed by the Central government in corporations established by or under any Central Act, government companies, societies and local authorities owned or controlled by that government.
(2) Notwithstanding anything contained in subsection (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).
Surely, if the sole purpose of the institution of the Lokpal is to ensure the integrity of police investigation and prosecution both free from executive influence the sensible course is, first to repeal the sanction provision (Section 197 of CrPC and Section 19 of the Prevention of Corruption Act) and to repeal also Section 6A of the DSPE Act.
The office of a Director of Prosecutions protected from political and police influence must be set up and the police force given the protection of the law for which it has been pining all these years. This is done easily by implementing the recommendations of the National Police Commission. Together, these steps will remove the perversion which crept into our legal system.
The CBI rightly objected to being brought under the purview of the nine-member body of an all-powerful Lokpal. Clause 25 resolves the issues thus: a(i) The Lokpal shall, notwithstanding anything contained in Section 4 of the Delhi Special Police Establishment Act, 1946, and Section 8 of the Central Vigilance Commission Act, 2003, have the powers of superintendence and direction over the DSPE in respect of matters referred by the Lokpal for preliminary inquiry or investigation to the DSPE under this Act:
Provided that while exercising powers of superintendence or giving direction under this subsection, the Lokpal shall not exercise power in such a manner so as to require any agency (including the DSPE) to whom the investigation has been given, to investigate and dispose of any case in a particular manner.
Why not engraft the last words in a charter for the CBI, which successive Directors have been pleading for? Two decades ago, the Estimates Committee of the Lok Sabha headed by Manoranjan Bhata said:
The Committee is of the firm view that unless the CBI is given a statutory status and well-defined legal powers to investigate the cases which have ramifications within the States, its effectiveness will decline substantially and steeply.
It is in these directions that our efforts should be directed give a new charter to the CBI to ensure its autonomy indeed. Discard the antique of 1946, but there is yet graver flaw.Maladministration
True, corruption in India has reached monumental proportions, and effective measures should be devised to eradicate the vice. It is, however, equally a folly of monumental proportions to imagine that the sole purpose of the Lokpal is to probe cases of corruption. That indeed is very much its duty. But there is much else besides which ombudsmen are supposed to check. It is maladministration which results in harassment and injustice even if there is no corruption.
Give it a thought. What kind of person will collect the evidence and marshal the facts to move the Lokpal? Not the villager, or the hapless clerk or the small businessmen, or the widow who does not receive the pension in time. In a poor country like ours these functions are as important as probes into corruption. They are studiously omitted in the Bill.
This Bill is a disgraceful perversion of the Interim Report of the Administrative Reforms Commission on Problems of Redress of Citizens Grievances. Submitted to Prime Minister Indira Gandhi by its chairman Morarji Desai on October 20, 1966, nearly half a century ago, it was signed by Harish Chandra Mathur, H.V. Kamath, V. Shankar and V.V. Chari. The report recommended a constitutional status for the Lokpal (para 37). Appended to it was a draft Bill. Clause 7 of the Bill empowered the Lokpal to investigate complaints of two distinct kinds: Injustice in consequence of maladministration and (2) favouritism or accrual of personal benefit or gain to the Minister or to the Secretary. It was also empowered to act suo motu in both these cases.
As pointed out earlier by this writer (History of deception, Frontline, May 20, 2011), this format was followed in all the Lokpal Bills from 1968 to 1985 when it was restricted to corruption. That restriction was blindly followed in all subsequent Bills of V.P Singh, H.D. Deve Gowda, Inder Kumar Gujral and Atal Bihari Vajpayee, and now this Bill.
One has only to mention the Law Minister who introduced the Bill in the Lok Sabha on August 26, 1985, A.K. Sen, for people familiar with his record in public life to realise that he was up to no good. He was inherently incapable of anything but the cynical whether on the Terrorist and Disruptive Activities (TADA) Bill or the Muslim Women's Bill, 1986. The Lokpal Bill was withdrawn on November 15, 1988; its vice proved contagious.
Indira Gandhi's Bills of 1968 and 1971 covered both allegation of corruption and maladministration, defined widely to include action, procedure or practice which is unreasonable, unjust, offensive or improperly discriminatory. These are the very kinds of behaviour that affect the poor hapless citizen. Bills from 1985 to 2011 omit them.Calling Arun Jaitley's bluff
The BJP regime headed by Vajpayee moved two Lokpal Bills, 90 of 1998 and 73 of 2003. Arun Jaitley waxes eloquent in denunciation of the procedure for the appointment of the Lokpal in the Bill of 2011 (Clause 4). Its selection committee consists of the Prime Minister, the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha, the Chief Justice of India and one eminent jurist nominated by the President. This, to his mind, stacks the cards in favour of the government (three-two); given the practices of the BJP in power, the jurist must necessarily be a stooge of the regime.
Now consult the two BJP Bills on this point. The selection committee would consist of the Vice-President, the Prime Minister, the Speaker, the Home Minister, the leader of the House other than the one in which the Prime Minister is a member and the Leaders of the Opposition in both Houses of Parliament a solid phalanx of five to two. Clause 4 of the 1998 Bill set up such a body; Clause 4 of the 2001 Bill replicated it.
Meanwhile, the States have forged ahead. In 1962, the Government of Rajasthan took the lead and set up a committee under the chairmanship of H.C Mathur to suggest administrative reforms. Its report, presented in September 1963, recommended the establishment of the ombudsman. Rajasthan amended its law to make it more liberal as Justice S.P. Kotwal noted in his first report as Maharashtra's Lokayukta (1973). His second annual report (1974) contains the poignant remark:
Our experience of the past two years has brought to light a large number of cases where extraordinary delays have taken place in the payment of pensions and retirement benefits and sometimes even arrears of pay in case of several government servants. The position is not improved when we notice that these delays invariably take place in the case of the very poorest class of employees in government service such as the peons and other Fourth class servants, and the schoolteacher in the mofussil, whose pay is notoriously low and whose economic condition borders upon starvation.
Of what use to such people are the Bills of 2011, whether by the government or by the so-called Team Anna? One of its members is Santosh Hegde, who was Advocate-General of Karnataka when the Ramakrishna Hegde government got enacted the Karnataka Lokayukta Act 4 of 1985. Its definition clauses 2(2) and 2(10) are relevant. The Lokayukta was empowered to probe both cases (Section 7). The definition reads thus:
(2) allegation' in relation to a public servant means any affirmation that such public servant,
(a) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;
(b) was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives;
(c) is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant;Or
(d) has failed to act in accordance with the norms of integrity and conduct which ought to be followed by public servants of the class to which he belongs.
(10) maladministration' means action taken or purporting to have been taken in the exercise of administrative functions in any case where
(a) such action or the administrative procedure or practice governing such action is unreasonable, unjust, oppressive or improperly discriminatory; or
(b) there has been wilful negligence or undue delay in taking such action or the administrative procedure or practice governing such action involves undue delay.
On retirement as judge of the Supreme Court, Santosh Hegde served as Lokayukta in Karnataka, one of the best ever, and later joined Team Anna. One must not ask whether he brought his State's Act to its notice.
Nor must one question the quality of the homework put in by that team or for that matter by Ministers of the government. Omission of maladministration is deliberate. Where was the much-vaunted, loudly professed concern for the poor? By the bogus team or by the Ministers? Is such a restrictive law to be recommended to the States? Folly has its own momentum. Anna Hazare, Baba Ramdev, film actors, sundry others rushed into the fray. Panicked, so did the Ministers. In this mad scramble to take the bull by the horns all that both sides accomplished was to grab the cow by its udder end.