A diluted Bill

IT took the Aam Aadmi Party (AAP) government, which came to power in Delhi with a massive mandate in the Assembly elections held in February, 10 months to seek to fulfil one of its key election promises: the passage of the Janlokpal Bill. On December 3, The Delhi Janlokpal Bill, 2015, got the support of 64 of the 70 members in the Assembly. But the party and the government now have a major challenge in convincing civil society about its merits. Anti-corruption watchdogs perceive it to be seriously flawed and different from the Janlokpal Bill that the 49-day AAP government in 2014 tried to table in the Assembly but could not because of procedural objections raised by Lieutenant Governor (L.G.) Najeeb Jung. He said the Bill had not been approved by the L.G. and the Central government. The minority AAP government, supported by the Congress, resigned over the issue and opted for fresh elections.

In 2015, the AAP government followed the same procedure in tabling the Bill in the Assembly, secure in the knowledge that with its brute majority in the House it could override any objections from the L.G. However, the Bill has to secure the assent of the President in order to become an Act. The key provisions of the Bill make one wonder whether the government is sincere in clearing this hurdle. There are enough indications that the provisions of the Bill are in conflict with The Lok Pal and Lokayuktas Act, 2013, enacted by Parliament, and the President is unlikely to give his assent to such a Bill.

However, the concerns of civil society go beyond what the President will do and are focussed on how a government that came to power on an anti-corruption platform can enact such a Bill. The Bill’s key provisions justify such concerns.

Key Provisions

The 2015 Bill demonstrates how much it has departed from the contents of the 2014 Bill and many of the promises of the 2011 Janlokpal movement.

The first promise of the Janlokpal movement was that the appointment of the Janlokpal would be done in an open manner by involving the public in the search process. What it envisaged was the appointment of the Janlokpal after inviting applications from eligible candidates through advertisements, the scrutiny of such applications in accordance with transparent criteria, and reasoned decision-making by a selection committee. Such a process was considered desirable in order to make it credible and trustworthy.

However, Section 3 of the 2015 Bill says that the chairperson and members of the Janlokpal shall be appointed on the basis of the recommendations of a selection committee and that this committee shall regulate its own procedure for selecting the members of the Janlokpal. The Bill is silent on how the committee will go about its task of selecting the chairperson and members from among a list of eligible candidates and how this list is to be drawn up. If the procedure to be regulated by the committee for this purpose excludes public participation and transparency, the institution to be set up is itself less likely to be transparent.

The second promise was that the final selection of the Janlokpal would be done by a committee in which independent, non-political and non-governmental appointees would be in the majority. This was to ensure that the Janlokpal remained free of political pressure of any kind.

The 2015 Bill, however, says that the chairperson and the two members of the Janlokpal shall be appointed on the basis of the recommendations of a selection committee. Its members include the Chief Justice of the High Court, the Chief Minister of Delhi, the Leader of the Opposition in the Legislative Assembly and the Speaker of the Legislative Assembly. An eminent citizen will be nominated to it by these four members. The sixth member will be a judge of the Delhi High Court selected by the full court of the High Court. This six-member committee selects the chairperson of the Janlokpal. The chairperson and the six members of the selection committee together will select the two members of the Janlokpal.

Thus, in the selection committee, at least four will be non-judicial members if one considers the eminent person, the fifth member, to be from the political class. The Chief Justice of the High Court will be in a minority in the four-member selection committee meant to choose the eminent person.

In its recent judgment declaring the National Judicial Appointments Commission unconstitutional, the Supreme Court deplored the Central government’s move to leave the category of eminent persons undefined in the NJAC Act. Section 2 of the 2015 Janlokpal Bill, which deals with definitions, does the same by maintaining silence on who qualifies as an eminent person in the Janlokpal.

Differences in the Bills

The 2014 Bill of the AAP government envisaged a broad-based Janlokpal. Section 3(2) of that Bill provided that the Janlokpal would consist of a chairperson who is or has been a judge of the Supreme Court or a judge of a High Court or is a person of impeccable integrity and eminence, and with extensive and outstanding knowledge of law. Apart from the chairperson, there would be six members and this number could go up to 10 according to need.

The 2014 Bill even provided for the induction of investigative journalists and people with experience in vigilance, insurance, banking or from the armed forces as members. More important, not less than 50 per cent of the members should be from among persons belonging to the Scheduled Castes, the Scheduled Tribes, the Other Backward Classes, minorities and women.

The 2015 Bill restricts the composition of the Janlokpal to the chairperson and two members and says nothing about the eligibility and the social background of candidates who may be considered for appointment. Section 3(2) says that the chairperson of the Janlokpal must have been a judge of the Supreme Court or High Court and that a member must have eminence in public administration, finance or investigation. By mentioning only the qualification and not eligibility of the proposed appointees, the 2015 Bill gives undue discretion to the selection committee.

A third proposal of the Janlokpal movement was that a special investigative agency should be created by or controlled by the Janlokpal. This was to ensure that the Janlokpal was not dependent on personnel of other agencies, which may be under the influence of the political class, for investigative purposes. Section 10 of the 2015 Bill says that the Janlokpal may appoint or, with the consent of the government, designate officers or agencies as Janlokpal Investigation Officers who are authorised to investigate offences under this Act. The Bill clearly does not envisage the creation and control of a special investigative agency by the Janlokpal.

Another promise of the Janlokpal movement was that the jurisdiction of the Janlokpal was to be extended to all the functionaries of the relevant government. Section 7 in the current Bill, which deals with matters to be inquired into by the Janlokpal, says that on receiving complaints from the government or from members of the public or suo motu , the Janlokpal may proceed to inquire into or investigate the allegations of “corruption” occurring in the National Capital Territory of Delhi. Thus, only allegations of corruption occurring within the territory of Delhi are to be probed. The inference here is that if the allegations pertain to corruption done by functionaries of the Delhi government outside Delhi, then the Bill has no applicability.

Another inference is that if the allegation of corruption pertains to Central government employees or even employees of the private sector, the Bill’s provisions can be invoked against them. It is also possible to suggest that Section 7 empowers the Janlokpal to investigate allegations of corruption against Union Ministers, including the Prime Minister. The 2014 Bill did not have a similar provision. These functionaries are already covered under The Lok Pal and Lokayuktas Act, 2013; therefore, if the provisions of the State legislation conflict with those of the Central Act, the latter will prevail.

Apart from its failure to pursue the goals set by the 2011 Janlokpal movement, the 2015 Bill has serious flaws that were not there in the 2014 Bill. According to it, the final authority for the removal of the chairperson or a member vests with the Legislative Assembly only, although the provision for inquiry by the Delhi High Court was inserted later. This has given rise to misgivings that the political class can protect a corrupt chairperson or a member of the Janlokpal even after the High Court holds such a person guilty after inquiry.

Lack of specific provisions to make the Janlokpal financially independent of the government is another concern. In the 2014 Bill, all expenses of the Janlokpal were to be voted to the Consolidated Fund of the NCT of Delhi, and the Janlokpal had a mandate to prepare its budget annually. The 2014 Bill provided for the Janlokpal putting out on its website every month the list of cases received during the previous month, the list of cases disposed of with brief details of every case, the outcome and action taken or proposed to be taken in that case, the list of cases pending, and the minutes and records of the Janlokpal meetings. The objective of such a provision was to ensure transparency. The 2015 Bill does not have this provision.

Section 9 of the 2015 Bill mandates that a person who wilfully or maliciously makes a false complaint shall be punished with rigorous imprisonment which may extend to one year or with a fine, which may extend to Rs.1 lakh, or with both. Observers fear that this provision may be misused and will discourage genuine complainants.

A proviso to Section 5(6) of the Bill allows a member or even the chairperson of the Janlokpal to be eligible for reappointment for an additional term. This, it is felt, will compromise the independence of the Janlokpal even though the same provision bans members of the Janlokpal from taking up any subsequent appointment with any government.

With such serious flaws in the Bill, it is no surprise that the father of the Janlokpal movement, Anna Hazare, has vacillated on his support to it. On December 1, Hazare said he would step in if the National Democratic Alliance government at the Centre put obstructions in the way of the Janlokpal Bill. Hazare’s assertion was captured on video by loyalists of Chief Minister Arvind Kejriwal, who went to see him at Ralegan Siddhi, near Pune, where he lives. Another video, recorded by the advocate Prashant Bhushan, on December 3, again at Ralegan Siddhi, however, quoted Hazare as saying that he wanted the 2014 Bill back.

Both Prashant Bhushan and Yogendra Yadav, founding members of the AAP who were expelled from the party and are currently leading the Swaraj Abhiyan movement, described the 2015 Bill as the Jokepal Bill and sought to expose its glaring deviations from the goals of the 2011 crusade and the 2014 Bill. If they succeed in convincing Hazare to articulate publicly his opposition to the 2015 Bill, it will, doubtless, embarrass the Delhi government.

For the citizens of Delhi, the quest for an effective anti-corruption ombudsman, it appears, will remain a pipe dream at least in the immediate future.