A national upsurge against corruption is both legitimate and understandable. Recent instances of corruption have shaken the faith of people in the existing anti-corruption mechanism.
The cancer of corruption has impacted various institutions. The 2008 Vote of Confidence obtained by the UPA Government in the Lok Sabha was vitiated by political defections wherein bribery and corruption played a significant role. The Parliamentary Committee disregarded the overwhelming evidence of bribery and divided itself on political lines. There is no greater crime in a democracy than vitiating a parliamentary mandate through bribery. An act of bribery was covered up by parliamentary subversion. Despite three years of protests the 2-G scam went unaccountable. It took a great deal of parliamentary pressures, media debates and judicial activism to bring some people to book. An international event like the Commonwealth Games was subverted due to allegations of corruption in the organization of the games. The credibility of Indian media is adversely hit by allegations of ‘paid news’. Judiciary must comprise of men of absolute integrity. Those who man judicial system adjudicate disputes between ordinary human beings. The premise on which the judicial institution functions is that it would be free from any collateral considerations. Regrettably, with many aberrations, this presumption does not exist today. The presumption of absolute impartiality has ceases to exist.
It is therefore important that accountability mechanisms within the society are strengthened and improved. The Lokpal is one such ‘integrity institution’ whose creation has been long debated. It provides a hope to many that accountability mechanisms will improve and a punishment to wrong doers will demonstrate a deterrent effect for others.
The Ministers’ draft of the Lokpal Bill has to be judged on the criteria whether it can sub-serve the object sought to be achieved.
The appointment and Removal mechanism
This draft provides for a Chairman and ten members who constitute the Lokpal. Four out of these ten members are judicial members. The Selection Committee to appoint the Lokpal is provided for in the draft bill. Besides two Leaders of Opposition and two representatives of the judicial institution the Ministers’ proposal provides for the prime Minister, the Speaker of the Lok Sabha, a leader of the house in which the Prime Minister is not a member, the Home Minister as members. The Cabinet Secretary is the member-Secretary of the Committee and the President of the National Academy of Sciences is added as a member. There is an excessive domination in the Selection Committee of those who support the government in power. To give a numerical edge to the Government, the Cabinet Secretary and the President of the National Academy of Sciences have been added as members. The latter has no expertise in the matter of appointment of a Lokpal.
The ministers’ draft provides that once it is armed with the Government majority the selection panel will select a Chairman and ten members of the Lokpal. The Non-Judicial members must be those with special knowledge of public affairs, administrative law,policy, academic, commerce, industry, law, finance or management. If the appointee is a member of parliament or legislature of a State, he is expected to resign before becoming a member of the Lokpal. Similarly, if he is connected with a political party he must severe his relationship with that party. This bill if enacted is expected to be replicated at the level of the State. Enough play of joints is given to the Selection Committee with Government domination to appoint various categories of persons including political workers provided they severe their connections with the party or resign from the public office they are holding. Adjudication of culpability or innocence is an investigative or judicial function. One has to sift through voluminous evidence in order to form an opinion whether an offence has been committed or not. It is either judges or police investigators who have experience or training to form a view. The very idea of placing politically connected persons or ideological campaigners which may include civil society members may render this adjudication a suspect. The ministerial draft enables the appointment of persons unequal to the task of being independent, fair and effective. The appointments can be loaded in favour of the Government.
If a person is aggrieved with bias or misconduct of a Lokpal, the Ministerial draft provides for no remedy to him. His removal can be made only by the Supreme Court only on a reference made by the President i.e. on the aid and advice of the Government. Thus, a Government can initiate the removal of a Lokpal. An aggrieved citizen cannot. Worse still, the power of suspending a Lokpal who at times may prove inconvenient for the Government is surprisingly vested in the Government and not in the Supreme Court.
Thus, a preliminary analysis of the ministerial draft reveals that the Selection Committee is Government dominated. The appointing criteria is vague and not necessarily confined to those capable of adjudicating on the basis of legal evidence. Former politicians can also be appointed. The power of initiating removal is with the government and the power of suspending an inconvenient Lokpal is also with the Government.
On the inclusion of Prime Minister
The ministerial draft clearly provides an immunity to the Prime Minister from the jurisdiction of the Lokpal. The Lokpal Bill lays down the procedure for investigation and creates the agency which has the power to investigate. The substantive law of corruption under which the crime is committed is the Prevention of Corruption Act. The substantive law i.e. Prevention of Corruption Act does not grant any immunity to the Prime Minister. If he is investigated by agencies such as the CBI or a State Police, no such immunity is available to the Prime minister. Laws granting Prime Minister’s immunity from legal provisions have been frowned upon. Constitutional amemdment which made prime Minister’s election non-challengeable was introduced in the Emergency. It was struck down by the Supreme Court. Ordinarily if the prime minister commits an offence the accountability standards for them must be higher than ordinary humans. The principle of Ceaser’s wife being beyond suspicion requires a more stringent standard for a Prime Minister. A prime Minister in larger public interest may need protection only in relation to National Security or Public order issues. These areas affect India’s sovereignty and security. Decisions taken by the Prime Minister and expenditure incurred on these subjects cannot be accounted for either before the Lokpal or any other investigative agency. There may be a rationale for treating these areas as special and distinct but if a Prime Minister were to receive kick-backs on commercial transactions or subvert a vote of confidence through bribery, why should he be immune from the penal law? It is for this reason that both Shri Atal Bihari Vajpayee and Dr. Manmohan singh have repeatedly said that they have no objection on being covered by the Lokpal. Clause 10 of the Lokpal Bill of 2001 thus granted only a limited immunity to the Prime Minister wherein it was stated –
“provided that Lokpal shall not enquire into any matter involving, or arising from, or connected with, any such allegation against the Prime Minister inso far as it relates to national security or maintenance of public order”.
This formulation in the NDA Bill seems to be more appropriate than a complete immunity.
Currently the system of judicial accountability is dealt with either as the in-house mechanism in the judicial system or by the impeachment process. The impeachment process is cumbersome, extraordinarily prolonged and ineffective in most cases. It is a process which is resorted to in the rarest of rare cases. The in- house mechanism has demonstrated its inherent limitation. India has moved to an era where judges appoint judges and other than in impeachment cases judges alone decide upon the misdemeanor of a delinquent judge. We have tried this system and regrettably failed. We have thus to explore a new system. There must be no knee-jerk reactions. We still need a responsible debate on the alternative mechanism. Some civil society activists have suggested that the Lokpal mechanism to cover the judicial institution also. An alternative suggestion has been that appointments and disciplinary matters relating to the judiciary should now go to a National Judicial Commission. The law Minister, Shri Veerappa Moily has been suggesting that the law relating to judicial standards and accountability be strengthened to include some of these concerns. The NDA Government had introduced the 98th Constitution Amendment in 2003 which provided for a National Judicial Commission in order o make judicial appointments. Its membership provided for judicial primacy but included the Law Minister as a representative of the Government and an eminent citizen who would be a public watch dog. The composition of the National Judicial Commision can be a matter of debate and larger consultation. Time has now come to create such a Commission and consider converting it into both an appointment and integrity institution in relation to the judges. This could be the Judicial Lokpal.
Also See: Mr L.K. Advani's blog on Lokpal Bill: A Chequered History