A Historical Opportunity

History has provided us another opportunity to approve the Lok Pal Bill which is pending for the last 46 years. Whether we correct the lapses and the weaknesses of the original Lokpal Bill as was introduced and approved by the Lok Sabha or we allow that to remain is being watched by the people of India. We need to restore faith in public life and create an effective mechanism to deal with corruption. It is important that we provide for an effective Lokpal legislation.

The Lok Sabha passed a Bill on December 27, 2011. On December 29, 2011 the Rajya Sabha disagreed with it. The majority members were in support of the amendments proposed by the opposition parties. It was at this stage that the House was adjourned. Subsequently, the Bill was referred to the Select Committee, which has since submitted its report.

The Select Committee was headed by Shri Satyavrat Chaturvedi, a senior Congressman. It functioned predominantly on non-partisan lines and has come out with a large number of recommendations, which were substantially unanimous. However, there are some changes, which have been made by the government to the recommendations of the Select Committee. 

The issues which were required to be resolved by the Rajya Sabha are mentioned hereunder.

1. The procedure for appointment for Lokpal: The original Bill as approved by the Lok Sabha provided for a Five-member collegium, which would appoint members of the Lokpal. It comprised the Prime Minister, the Speaker of the Lok Sabha, the Leader of Opposition in Lok Sabha, the Chief Justice of India and a Jurist of eminence. Since a Jurist of eminence was appointed by the Government of India this could give the Government a majority in the matter of appointment. The Select Committee has recommended that the Jurist has to be appointed by the other four members through a consensus process.
   
   
2. Removal of erring members of Lokpal: The Bill as approved by the Lok Sabha provided for removal of Lokpal by a reference made to the Supreme Court by the President of India, on the aid and advice of the council of ministers. Thus only the Government of India could initiate the process of removal of a member by making a reference to the Supreme Court. Presently, the Select Committee has replaced this procedure and 100 members of Parliament are entitled to petition the Supreme Court asking for removal of a member of the Lokpal. In the original Bill, during pendency before the Supreme Court, the government alone was empowered to suspend an erring Lokpal. This power has now been shifted to the Supreme Court.
   
   
3. Jurisdiction of Lokpal to cover NGOs: Clause 14 (h) provided that the jurisdiction of the Lokpal would extend to a large number of private organizations outside the government. The object of the Lokpal was to deal with the officers from the government. However, a ‘revenge Provision’ was introduced against the civil society by providing that any organization, which collects donations from the public would be under the jurisdiction of the Lokpal. Thus, all religious organizations, education organizations, societies, cooperative societies, clubs and associations or any other body doing charitable work which claims funding from the government would also be covered under the Lokpal. This would increase the burden of work on the Lokpal without larger public interest being involved. The Select Committee recommended the deletion of this provision. It recommended that only such private bodies would be covered, which either receives funding from the government or from foreign sources.
   
   The government though its official amendments has sought to deal with this provision by excluding religious organization but allowing the Lokpal to have jurisdiction against any other private organization. There is no rationale in Lokpal having jurisdiction over bodies, which have nothing to do with the government or instrumentality of the state. The BJP is of the opinion that the recommendation of the Select Committee are fair and should not be interfered with.
   
   
4. Procedure for Inquiry: The original Bill, as approved by the Lok Sabha, provided for a complicated procedure for inquiry and investigation. It provided that a reference would first be made to the Lokpal, who would conduct preliminary inquiry itself or through the CVC. Thereafter it has to decide whether to refer the matter to the CBI or any other investigative agency or not. At this stage, all documents would be shared with the delinquent. After the completion of the investigation by the CBI or any other investigative agency, the said investigation would come back to the Lokpal and the Lokpal itself would become the prosecuting agency. All experts who appeared before the Select Committee, disagreed with this recommendation. The select committee has therefore recommended a straight forward procedure for investigation. The said provisions now include a preliminary inquiry by the Lokpal, a reference to the investigative agency to investigate the case, filing of the charge sheet or the closure report by the investigative agency. It has further provided for grant of sanction after obtaining opinion of the competent ministry. The power of granting sanction has been vested in the Lokpal. While most of these recommendations have been approved by the government, the government has introduced a new provision by which at the stage of preliminary inquiry, before embarking on preliminary inquiry, the delinquent official would be provided a hearing by the Lokpal. This would render the inquiry or investigation otiose. In cases involving bribery, accumulation of wealth, disproportionate assets, where an official has to be taken by surprise, searched and raided, the provision for grant of an opportunity for hearing before such action can be taken would defeat the purpose of evidence collection. This is an important area of disagreement between me and the changes as proposed by the government. It is important that we go back to the recommendation of the Select Committee. The recommendation of the Select Committee should be accepted.
   
   
5. Central Bureau of Investigation: The Select Committee examined in detail various proposals with regard to ensuring professionalism and independence of the CBI. It has made several recommendations in this regard. There would be two separate wings in the CBI viz. the Prosecution Wing and the Investigation Wing. There would be a Director, Prosecution appointed on the advice of the CVC. The CBI, Director would be appointed by the collegium comprising the Prime Minister, the LOP and the CJI. The Director, CBI would be the head of both the wings. The Director, CBI and the Director, Prosecution would have a fixed tenure. The power of superintendence with regard to the CBI in relation to the Lokpal-referred cases would vest in the Lokpal. The panel of advocates representing the CBI would be independent lawyers and would be appointed by the CBI with the consent of Lokpal. Certain amount of financial powers would be vested in the Director, CBI in order to ensure independence of the investigation and incurring of the expenditure necessary for making fair investigation.
   
   
6. Lokayuktas in the states: A Lokayukta in the state can only be appointed by a law passed by the state legislature. This is because the subject matter deals with the services of the state. The Select Committee, therefore, rightly provided for a provision, which would provide Lokayukta in the state and for that purpose a model law would be circulated to all the states on the pattern of the central Lokpal Act.

However, there is one area of difference between the recommendations of Select Committee and my view. I had proposed that the transfer of the officials investigating cases, referred to by the Lokpal, during the pendency of the investigation, can only take place with the concurrence of the Lokpal. However, the power as it stands today is vested in the government. The government can defeat the purpose of independent investigation by transferring an inconvenient officer. This requires a relook.

On a joint reading of the recommendations of the Select Committee and the government’s amendments to the same, there are only four areas of disagreement that I have with the proposals under consideration.

1. There cannot be a provision for a religion based reservation in the matter of jurisdiction of Lokpal.
   
   
2. Transfer of officers during investigation can only be done with prior approval of the Lokpal and not otherwise.
   
   
3. No opportunity of hearing can be given at the stage of preliminary inquiry to a delinquent official since that would defeat the very purpose of the inquiry itself.
   
   
4. All NGOs which are neither funded by the government nor by foreign sources should be outside the jurisdiction of the Lokpal.

Arun Jaitely is the leader of opposition (Rajya Sabha)