Crusade and farce

Anna Hazare at a protest where his supporters burnt copies of the Lokpal Bill, at Ralegaon Siddhi in Pune on August 4. - PTI

The prospect for a smooth passage of the Lokpal Bill looks dim, mainly because of the divergence of opinion.

ON August 4, the United Progressive Alliance (UPA) government introduced the Lokpal Bill in the Lok Sabha for the ninth time in the history of the Indian Parliament. First introduced in 1968, the Bill lapsed with the dissolution of the then Lok Sabha. Successive governments reintroduced it with changes seven more times in Parliament, the last time in 2001. The Bill lapsed each time except in 1985 when it was withdrawn. The prospect for a smooth passage of the present Bill looks dim, mainly because of the divergence of opinion among the government, the political parties and civil society groups.

The discord between the government and the opposition parties became pronounced with both taking diametrically opposite positions on the question of inclusion of the Prime Minister within the ombudsman's ambit. Prime Minister Manmohan Singh initially suggested that his office could come under the purview of the Lokpal; however, the rest of the Council of Ministers who opposed his inclusion prevailed upon him when the Cabinet approved the Bill on July 28. Among the constituents of the UPA, only the Dravida Munnetra Kazhagam (DMK), which defended the inclusion of the PMO, was not represented at the Cabinet meet. The Bharatiya Janata Party (BJP) and the Left parties have opposed the exclusion of the PMO from the Lokpal's jurisdiction.

The Bill reflects the draft prepared by the five government nominees on the 10-member Joint Drafting Committee (JDC) on the Lokpal Bill which concluded its work on June 16 without reaching a consensus. The five civil society members led by the social activist Anna Hazare had suggested adoption of their version, the Jan Lokpal Bill.

Clause 17 (1) (a) of the Bill says that the Lokpal shall inquire into any allegation of corruption in respect of the Prime Minister after he has demitted office. Union Information and Broadcasting Minister Ambika Soni has defended the government's move on the grounds that a Lokpal inquiry into allegations against an incumbent Prime Minister might have an adverse effect on the stability of the government.

However, the Statement of Objects and Reasons (SOR) attached to the Bill does not explain the object of making an exception with regard to the Prime Minister. Interestingly, the SOR refers to the constitution of the JDC on April 8 to draft a Lokpal Bill but is silent on how this committee carried out its proceedings and why it failed to produce a Bill on the basis of consensus. It also does not explain why the government could not keep its promise of submitting the two drafts of the Bill one prepared by the government nominees and the other authored by Team Anna Hazare for the Cabinet's consideration, before finalising the government's Bill.

The SOR makes claims that are contrary to facts. Paragraph 3 of the SOR says that the Bill is based on the deliberations of the JDC and has been prepared keeping in mind the need for establishing a strong and effective institution of Lokpal to inquire into allegations of corruption against certain public functionaries. The JDC's deliberations displayed sharp divergence of views between the government's nominees and Team Anna on the salient aspects of the proposed Bill. Secondly, the SOR's claim that the Bill will pave the way for a strong and effective institution of Lokpal is also open to serious challenge. The Bill not only has provisions that are designed to shield the corrupt, but the SOR does not even explain why allegations against only certain public functionaries are proposed to be probed.

The Bill seeks to establish a Lokpal with a chairperson and eight members, 50 per cent of whom will be drawn from the judiciary. The President will appoint the chairperson and members of the Lokpal after obtaining the recommendations of a selection committee consisting of the Prime Minister (its chairperson), the Speaker of the Lok Sabha; the Leaders of the Opposition in the Lok Sabha and the Rajya Sabha; a Cabinet Minister to be nominated by the Prime Minister; one sitting judge of the Supreme Court and one sitting Chief Justice of a High Court, both to be nominated by the Chief Justice of India; one eminent jurist to be nominated by the Central government; and one person of eminence in public life with wide knowledge of and experience in anti-corruption policy, public administration, vigilance and policymaking, who will be nominated by the government. The majority of the nine members (five) will be government nominees and this tilts the scales in favour of the government in case of a division within the selection committee.

Also, Clause 4 (3) of the Bill, which refers to the constitution of a search committee to prepare a panel of persons to be considered for appointment as members of the Lokpal by the selection committee, makes it an optional exercise by the selection committee, which is contrary to recognised norms of appointment to such institutions. The constitution of the search committee, according to observers, must be mandatory and its composition should not have been left to the discretion of the selection committee.

The Bill also seeks to set up the Lokpal's own investigation and prosecution wings. Its category of public functionaries includes a Prime Minister after he has demitted office, a Minister of the Union, a Member of Parliament, and any Group A officer or the equivalent. The Bill makes it clear that the various offices held by the Prime Minister shall not come within the meaning of public functionaries.

Sub-clause (2) of Clause 17 provides that the Lokpal shall not inquire into any matter against any member of either House of Parliament in respect of anything said or vote given by him in Parliament or any committee thereof covered under the provisions of Clause (2) of Article 105 of the Constitution. Although the Supreme Court's judgment in the Jharkhand Mukti Morcha (JMM) bribery case favours the government's stance on the issue that only Parliament is competent to investigate the conduct of members inside the House, common sense suggests that the court's judgment requires reconsideration, as an MP's conduct within the House, if marred by allegations of bribery, should not form part of parliamentary privilege.

Team Anna suggests a broader jurisdiction for the Lokpal, as an act of corruption also includes any offence committed by an MP in respect of a speech or vote in the House, wilfully giving or taking benefit from a person, and victimising a whistleblower or witness. According to Team Anna, the Lokpal should cover all public servants as defined in the Prevention of Corruption Act, 1988: government employees, judges, MPs, Ministers and the Prime Minister.

The Bill excludes Ministers, MLAs and government servants in the States from its purview as the government agrees with the States that the Lokayuktas, created in some States through State laws, could inquire into allegations of corruption against them. The Bill also excludes judges, as the government believes that separate legislation, rather than the Lokpal Bill, should be enacted to investigate allegations against judges, in order to protect the independence of the judiciary.

Anna Hazare, in his letter to MPs on August 2, deplored the fact that the Bill closed the option of debate on five critical issues that his team had raised. They include a strong public grievance redress mechanism with a provision for penalties so that all departments could work effectively to reduce corruption. Such a mechanism would cover the lower bureaucracy as well, as most cases of corruption affecting the poor, farmers, workers and the general populace take place during their interaction with the lower bureaucracy. All cases of corruption even at higher official and political levels would not be possible without the involvement of the lower bureaucracy, Anna Hazare said.

Secondly, he suggested that the same Bill should create a strong, accountable and independent Lokpal and also Lokayuktas at the State level because many of the corruption cases impacting the poor involve State government officers.

Thirdly, he stressed the need for independent selection, funding and removal mechanisms to ensure the autonomy of the Lokpal's functions. Fourthly, he emphasised strong, effective checks and balances to ensure accountability and transparency of the Lokpal and the Lokayuktas.

Fifthly, he wanted the MPs to discuss inclusion of the Prime Minister, the judiciary and the conduct of MPs in Parliament, and dismissal of corrupt officers, strong punishment for corruption and empowerment of the Lokpal with checks and balances, among other things.

All said, however, the Bill is not without its merits. It provides for a mechanism to ensure that no sanction or approval under Section 197 of the Code of Criminal Procedure, 1973, or Section 19 of the Prevention of Corruption Act, 1988, will be required in cases where prosecution is proposed by the Lokpal; it confers on the Lokpal the power of search and seizures and certain powers of a civil court; and it empowers the Lokpal or any investigation officer authorised by it to attach property which, prima facie, has been acquired by corrupt means.

But such merits pale into insignificance in the face of the harsh penalties for making false and frivolous or vexatious complaints. Such complainants are to be penalised with two to five years of jail and a fine of Rs.25,000 to Rs.2 lakh.

The prosecution of such complainants will be at the government's expense, and the false complainants are liable to pay compensation to the public servant against whom he made such a complaint, besides meeting the public servant's legal expenses in contesting the case.

Team Anna has mocked this provision by stating that the penalty for any act of corruption starts at six months' imprisonment.