‘A gigantic institution that draws powers from a statute based on questionable principles’

A comprehensive analysis of the big problem areas in the activists’ draft of the Lokpal bill

Written by Venkatesh Nayak | Published:April 20, 2011 3:31 am

Efforts to establish an Ombudsman-type institution in India started with the recommendation of the first Administrative Reforms Commission under the chairmanships of the late Shri Morarji Desai and the late Shri K. Hanumanthaiah during the 1970s. Bills were introduced in Parliament more than once,but we have not yet been able to bring about a consensus of views on what an Ombudsman-type institution,namely the Lokpal,should look like and the kinds of powers that should be vested in it. Even as the government is working on a draft bill,some civil society actors have come up with a draft Jan Lokpal bill demanding the establishment of a strong Lokpal that will tackle both corruption and maladministration that plague the government at various levels. Citizens can make complaints to the Lokpal directly about any act or omission that constitutes an offence under the Prevention of Corruption Act,1988,against any public servant,including the prime minister,ministers of various ranks,members of Parliament,all government servants and employees of statutory corporations. Powers of inquiry,investigation,prosecution,oversight,enforcement of orders,tapping phones and intercepting messages,confiscating property,etc are all proposed to be vested on a single authority,namely the Lokpal. Such privileging of a single authority with wide-ranging powers and functions is unparalleled in the country’s legislative history and is perhaps unwise. An examination of the provisions contained in the Jan Lokpal bill 2011 (version 2.2) gives rise to the following major areas of concern:

Combining investigation and prosecution powers in the Lokpal: The combination of powers to investigate and prosecute public servants for offences of corruption goes against the basic principle of the separation of these two functions in the criminal justice system,which was accomplished as far back as in 1973. A prosecutor is an agent of justice and an officer of the court. He or she must apply an unbiased and independent mind to the case prepared by the investigating officer. Such independence may not be possible if the prosecution agency is under the overall control of the Lokpal.

Vagueness of definitions: Certain terms as defined in the draft bill are vague. For example,“vigilance angle” includes within its ambit acts such as “exercise of discretion in excess”,“indulging in discrimination through one’s conduct directly or indirectly”. These are loose expressions of noble intent,but can cause havoc during application and judicial interpretations. Similarly,a whistleblower is defined as a person who faces a threat of professional or physical harm,or has been actually harmed for making a complaint to the Lokpal,or for making a request for information under the Right to Information Act,2005. This is more restrictive than the definition of a whistleblower contained in the 2010 bill pending in Parliament. The mere making of a public interest disclosure of wrongdoing is adequate for the purpose of being identified as a whistleblower under that bill.

Selection committee: The draft bill requires that two of the youngest judges of the Supreme Court and two youngest chief justices of high courts to be part of the selection committee for the Lokpal. While the principle of length of service… which itself contributes to experience and knowledge guides the idea of having the seniormost judges on such panels,the underlying principle of choosing the youngest judges is not very clear. What criteria will be applied in this regard — actual age of the judge,or the length of service?

Appointment of the Lokpal: Clause 8(11) gives a high degree of finality to the list of names recommended by the selection committee for filling up vacancies in the Lokpal. The president is required to only sign on the dotted line. The president must be allowed the space to satisfy himself/herself that the procedure for selection as laid down by the law has indeed been observed and the best candidates have been selected through due process. If these criteria are not fulfilled,the president must have the power to request the committee to reconsider its recommendations. The inclusion of the outgoing members of the Lokpal in the committee will needlessly inflate its size with no major purpose. The outgoing members may instead be consulted informally before the final list of candidates is prepared.

Videographing the selection process: The draft bill envisages the videographing of the entire selection process and making it public. While interviews of candidates may be made public,the committee must be allowed the space to deliberate in confidence while making a final decision. The outcome of the discussions and the reasons for selection may indeed be made public but if the deliberations are also made public,the candour and freeness of the discussions are likely to be affected adversely.

Lokpal fund: The draft bill envisages the creation of a fund into which all penalties and fines imposed by the Lokpal and 10 per cent of the monies confiscated will be deposited. The Lokpal will have absolute discretion to use these funds to enhance or upgrade the infrastructure of the Lokpal. This provision ignores the principle of legislative oversight over the manner of spending of funds collected from the public. Insulating large sums of money from parliamentary scrutiny does not lead to stronger mechanisms of accountability.

Independence of the judiciary: The draft bill in a few places encroaches upon the constitutionally guaranteed independence of the Supreme Court. The provision relating to removal places several restrictions on the inherent powers of the Supreme Court to determine the number of justices who will hear a case or even dismiss a case in liminae.

Further,the draft bill brings all justices of the Supreme Court and the high courts under the ambit of the Lokpal. Offences of corruption are better handled by a separate body such as a national judicial accountability commission.

Clauses 17 and 18 of the draft bill give powers of appeal to the Lokpal over all the actions of the justices of the Supreme Court and the high courts. A mere allegation of mala fide against a judicial body is adequate for the Lokpal to start an inquiry or investigation into the actions of judges. This is entirely undesirable as it violates the principle of independence of the judiciary which enables judges to act without fear.

Power of review over executive decisions: Clauses 8 and 17 turn the Lokpal into a civil court that will reverse the decisions of the executive such as grant of licences,permits,authorisations and even blacklist companies and contractors. This is not the job of an Ombudsman-type institution. Instead,the Lokpal must make recommendations to the public authority to take such actions and any failure to comply with must be dealt with by the Lokpal by approaching the appropriate court for issue of an enforcement decree.

Transparency must be balanced with other public interests: It is laudable that the draft bill places a lot of emphasis on transparency in the proceedings of the Lokpal. However,the draft bill fails to balance this public interest with other important public interests such as the right to privacy and reputation. In our society,it is not uncommon for persons accused of offences to be stigmatised even though they may eventually be acquitted by a court of law. It is important to ensure adequate balance between the need for transparency and the need to protect privacy and reputation of individuals.

Extraordinary powers of the Lokpal: The draft bill seeks to vest enormous powers in the Lokpal such as telephone tapping,issue of letters rogatory,confiscation of property for making false assets statements,etc. While these powers may be necessary for tackling corruption,there must be adequate checks and balances to prevent their misuse. Lord Acton famously said: “All power tends to corrupt; absolute power corrupts absolutely.” The draft bill does not provide for appeals against most actions and orders of the Lokpal. This is a major lacuna. Letter rogatory unless issued by an independent court may not be valid in external jurisdictions. The efforts to tackle corruption in extra-territorial jurisdictions may come to naught merely because of this provision. The draft bill also lacks procedural safeguards save the requirement of giving a hearing to a public servant prior to confiscation of property.

The Lokpal in effect will be the investigator,prosecutor and enforcer of its will. When coupled with the powers to punish for contempt and in the absence of an appellate body the draft bill in fact creates a gigantic institution that draws its powers from a statute that is based on questionable principles.

Extracted from notes presented at a public consultation on the Lokpal Bill at the Nehru Memorial Museum and Library on April 16

Justice Shah retired from the Delhi high court in 2010. Nayak is co-convenor of the National Campaign for People’s RTI

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