The absence of an adequately independent and empowered body to investigate and prosecute allegations of corruption, especially relating to the rich and the powerful, has been a longstanding concern in India. The Central Vigilance Commission’s (CVC) relative independence has proved ineffective as it has few resources at its disposal while the CBI, which is relatively empowered, lacks independence — a “caged parrot”, according to the Supreme Court.
After languishing in Parliament since 1968, the proposal to set up Lokpals and Lokayuktas (anti-corruption ombudsman) received parliamentary approval in 2013. This legislation, while setting up a national Lokpal, left to the states to legislate on state-level Lokayuktas.
The primary mandate of the Aam Admi Party, which won in Delhi with an overwhelming majority, was checking corruption. In fact, in 2014 the AAP government resigned from office purportedly because they had been prevented from introducing a powerful Lokayukta bill in the Delhi Assembly. Nevertheless, the Delhi Janlokpal Bill, 2015, passed by the Delhi Assembly fails to provide sufficient powers and independence for the Lokpal and seems unworkable.
To begin with, by not providing the Janlokpal an independent budget — voted by Parliament or even by the Delhi Assembly and charged directly to the consolidated funds — its independence and efficacy has been seriously compromised as it becomes financially dependent on the Delhi government. Further, the Janlokpal is not empowered to appoint its own staff, and will have to work with the staff provided to it by the government.
The Delhi bill also does not provide the Janlokpal a dedicated investigation wing. Even for the certain cases under which the bill confers the power to appoint investigation officers and agencies, the Janlokpal only has powers of superintendence and direction over them. Such powers are ceremonial and without concomitant control over transfers and removal of the investigating officers, and a final say on their performance appraisal for the concerned period.
Further, despite some changes to the composition of the selection committee and the process for the removal of members of the Janlokpal, some shortcomings still remain. For example, the bill requires that the MLAs move an address in the legislative assembly to remove a member of the Janlokpal only on the recommendation of an enquiry conducted by the Delhi High Court. However, the bill does not specify how can such an enquiry process be initiated, and who has locus standi.
The amendment regarding the composition of the selection committee too seems to be hurriedly drafted and fraught with problems. It expects the “full court” of the Delhi High Court to select a judge to be a member of the selection committee. This is unprecedented. Usually the chief justice nominates a member. It would be interesting to see whether the “full” high court would agree to this. Besides, the amended legislation provides no workable solution — by way of a casting vote — to resolve an impasse if the initial four-member committee (which is supposed to select an eminent citizen as a member of the selection committee) or the six-member selection committee (which will select the first chairperson of the Janlokpal) is tied.
The bill empowers the Janlokpal to inquire into or investigate any allegation of corruption occurring in the National Capital Territory of Delhi, including those against public servants of the Central government and its authorities, judges, military personnel, and other such, who are covered under the (Central) Lokpal & Lokayuktas Act, 2013 and other Central legislations. It also proposes changes in the quantum of sanctions prescribed in Central laws, including the Prevention of Corruption Act. But Article 239AA of the Constitution states that if there is conflict or inconsistency between an act passed by the Delhi Assembly and Parliament, the national act will prevail, unless the Delhi law has the approval of the President (read Central government). Therefore, it seems very likely that the Janlokpal bill will potentially get caught up in legal tussles with the Central government and, as a result, will be either inordinately delayed, or even rejected.
Distressingly, the Delhi bill mandates that a person who wilfully or maliciously makes a false complaint under this legislation, shall be punished with rigorous imprisonment. This provision is regressive and runs the risk of being misused and discouraging genuine complainants.
However, the biggest shocker is Section 5(6) in the bill , which allows a member or even the chairperson of the Janlokpal to be eligible for reappointment for an additional term. This single provision, at variance with the provisions relating to the information commissioners, the CVC, the election commissioners, etc, fatally compromises the independence of the Janlokpal. This is despite the fact that in the same section, the bill bans members of the Janlokpal from taking up any subsequent appointment with any government. Obviously, then, the AAP is aware of the impact that future prospects have on the integrity of a functionary.
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