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The Lokpal and Lokayukta Bill, 2011: Who will guard the guards?

Yukti Choudhary analyses the Lokpal and Lokayukta Bill, 2011 and provides her insights into the same.
 
Corruption is an evil which has to be dealt with very strictly in any society. India ranks very low in this aspect, as per the reports of the World Bank and Transparency International. India ranks 95 out of 182 countries on the Corruption Perception Index, 2011 of Transparency International with a score of 3.1 out of 10. Historically, corruption has always co-existed with an organized state structure. Kautilya of Arthashastra, in 200 B.C., had identified forty different ways by which public officials could indulge in corruption. He compared the officials with fish and public funds with water; it was difficult to know if and when the fish was drinking the water.

Presently, corruption is dealt with in the Indian Penal Code, 1840, the Prevention of Corruption Act, 1988 and the Prevention of Money Laundering Act, 2005. These acts together define ‘public servants’ to include government employees, officers in the military, navy or air force, police, judges, officers of Court of Justice, and any local authority established by a central or state Act, office bearers of cooperative societies receiving financial aid from the government, employees of universities, Public Services Commission and banks. However, the Code of Criminal Procedure, 1973 requires the investigating agencies to get prior sanction of the central or state government before it can initiate a prosecution case against public servants in the Court. ‘Public Servants’ has also been held to include Members of Parliament, as decided in PV Narasimha Rao v. State . However, opinion of the judges was divided over the issue of previous sanction since there was no authority competent to give sanction.

Despite the existence of such laws and institutions like the Central Vigilance Commission and Anti-Corruption Bureau, corruption is rapidly spreading. The primary reason for this is lack of political will and public apathy to combat corruption.

Journey of the bill: the timeline

The need of an anti-corruption law was recognized long time back but awareness about it has been created by the civil society recently. In 1963, the thought of an ombudsman first came up in the parliament by L.M. Singhvi during a discussion on the budget allocation for the Ministry of Law. In 1966, First Administrative Reforms Commission recommended the setting up of two independent authorities- at the central and state level, namely the Lokpal and Lokayukta to look into complaints against public functionaries, including the Members of Parliament . Between 1968 and 2011, the Lokpal Bill was introduced in the Parliament eight times, but could not be passed. In 2002, the National Commission to Review the Working of the Constitution recommended the appointment of Lokpal and Lokayukta . In 2005, the Second Administrative Reforms, headed by Veerapa Moily, recommended the setting up of the office of the Lokpal without any delay. The UPA Government included the enactment of the Lokpal Bill into a law in the National Common Minimum Programme of the Government of India, 2004. In 2011, a group of ministers headed by Pranab Mukherjee was convened to look into the issue of the proposal of the Lokpal Bill to combat corruption.

At the state level, 18 states have created the institution of the Lokayukta through their respective Lokayukta Acts . They are Andhra Pradesh, Assam, Bihar, Chhattisgarh, Delhi, Gujarat, Jharkhand, Haryana, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Orissa, Punjab, Rajasthan, Uttarakhand and Uttar Pradesh. Due to difference in structure, scope and jurisdiction, the effectiveness of the State Lokayuktas vary from state to state. Some states have made provisions for suo moto investigation by the Lokpal. In some states, the Lokayukta has also been given powers for prosecution and also power to ensure compliance of its recommendation. Of the states which have the enactment, four states have no actual appointment in place for a period ranging from two months to eight years . In Karnataka, the Lokayukta’s investigation led to the dismissal of the then Chief Minister Yeddurappa.

Recent scandals involving huge amounts of money and data provided by Wikileaks dealing with black money stashed in Swiss Banks by Indians suddenly awakened the nation to the menace created by corruption. The civil society, led by Anna Hazare capitalized on this and drafted a Jan Lokpal Bill to combat corruption. They envisaged the creation of an all-powerful Lokpal, a body at the Centre which would look into the complaints filed by the citizens against the public officials, which would include everyone in the colossal Indian bureaucracy, the Members of Parliament, the judiciary, the CBI, all public servants and the Prime Minister.

Subsequent to this uproar created by "Team Anna", the Lokpal Bill was tabled in the Parliament in August 2008 but could not be passed. The Bill was once again presented in the Lok Sabha, as the Lokpal and Lokayukta Bill, 2011 on December 27, 2011. After numerous amendments, it was passed by the Lok Sabha. The bill has not been defeated in the Rajya Sabha. It will be taken up in the budget session. Even if it is not passed by the Rajya Sabha, a joint meeting of both the houses as dealt with in Article 108 of the Constitution of India may be summoned by the President. In such a case, the Bill will be passed in its’ present form.

Anna hazare’s campaign

The agenda raised by Anna Hazare and his team was very much in tunes with the times; however the methods employed by him were not. The civil society led by Anna Hazare pressurized the Central Government to enact the Jan Lokpal Bill as prepared by ‘Team Anna’. In doing so, the civil society played with the incomplete and segmented knowledge of the people to push their own agenda.

Like any democracy, in India too, the political power is vested in a few elected representatives of the people through the medium of elections. Bureaucracy is based on merit. Merit or being elected does not guarantee that this minority will not misuse its powers for personal interests. Instead of using this opportunity to educate the masses about the importance of electing good and accountable representatives, Team Anna chose unconstitutional methods to get the Jan Lokpal Bill, as prepared by them, passed in the Parliament. This Team did not have any mandate to draft the Bill. Article 107 of the Constitution of India confers the privilege of introducing, discussing and passing of a Bill to Parliamentarians only.

B. R. Ambedkar in his last constitutional speech warned of three dangers to democracy. Interestingly, the movement led by Anna Hazare had all the three elements. The three dangers related to social and economic inequalities, use of unconstitutional methods and hero-worship. According to Ambedkar, political equality must be complemented by social and economic equalities. He warned that in case of social and economic inequalities, the ones who suffer may rebel. In India, we have political equality in the form of one-vote-one person system. But as a nation, we have failed in providing social and economic equality to all. Secondly, coercive means must not be used to bring about a change. Thirdly, hero-worship is a threat for any democracy as it can result in Dictatorship.

Dharna and fasts are coercive means of bringing about change. Anna Hazare has claimed to be a Gandhian. But Gandhi resorted to these means only when there was no constitutional method left to bring about change. Anna Hazare, on the other hand, had constitutional means. Using constitutional methods, civil society members, in the past, have been able to draw the attention of the Government to major issues affecting the masses like poverty and transparency in the working of the Government. Subsequently, Bills like Right to Employment (MGNREGA) and Right to Information have been passed. The methods used by Team Anna question the faith that the masses have in democracy and the Indian political stability.

The Central Government is a coalition government. Team Anna could have worked with various parties to consider their Bill. This would have been within the ambit of the Indian Constitution. The fact that none of the major political parties of India backed the Jan Lokpal Bill in its original form is proof that it suffered from inherent defects. Alternatively, Team Anna could have formed a political party, got elected to the Parliament and then passed the Jan Lokpal Bill.

The structural flaw in our Constitution, like in any democracy, concerns the delegation of powers on the Members of Parliament. Once this power has been vested in the person, what remedy is available to the voter in case of a conflict of interest or a difference of opinion? The only available remedy would be that the voters withdraw their mandate from an MP who does not work in the interest of his people in the next elections. These are the checks and balances that a democracy is blessed with.

This movement questions the place of the civil society in a democracy. Article 19(1) (c) of the Indian Constitution confers upon the citizens of India the right to form association and unions. Section 141 of the Indian Penal Code, 1840 defines ‘unlawful assembly’. It includes an assembly of five or more persons, if the object of the persons composing that assembly is to resist the execution of any law, or of any legal process. By resisting the legal process of the passing of a Bill by the Parliamentarians, Team Anna can be said to have organized and been a part of ‘unlawful assembly’. Also, by threatening to go on fast unto death, Anna ‘attempted to commit suicide’ as defined in Section 309 of the Indian Penal Code,1840, which is punishable with imprisonment up to one year or fine or both .

Anna Hazare has been using physical and moral force to control the private and public life of the people of Ralegan Siddhi, Maharashtra. Ralegan Siddhi is Anna Hazare’s village where Anna is the supreme authority who lives in the temple premises and takes socio-political decisions for all. His decisions have the ‘sanction of God’ and hence are more likely to be followed. People who consume alcohol are tied to a pole and publicly flogged. No shop is allowed to sell bidis and cigarettes. No alcohol can be brewed here. This is in contravention of Article 301-305 of the Constitution of India which deals with the freedom to trade, intercourse and commerce. They are also an infringement on the fundamental right to practice any profession, or to carry on any occupation, trade or business as enshrined in Article 19(1)(g). No film songs or movies can be played in Ralegan Siddhi except those with religious themes. Five rules developed in Ralegan Siddhi which are mandatory for the residents are Nasbandhi (ban on family size), Nashabandhi (ban on consumption of alcohol), Charaibandhi (ban on free grazing), Kurhabandi (ban on felling of trees) and Shramdan (donation of labour for community welfare). These are coercive and unconstitutional means, dictatorial in character which breach the fundamental rights guaranteed to all citizens of India under Article 21 which guarantees protection of life and personal liberty. Ralegan Siddhi has not had any gram sabha elections for the past few years as Anna Hazare believes that party politics divides the village community. The leaders are merely nominated by Anna Hazare . This is against the spirit of democracy where every citizen is given the right to vote.

Hazare’s campaign was generously backed by corporate companies, religious and spiritual trusts etc. Many of them are already being investigated for corruption and related crimes. Its an irony that these very organizations are funding the anti-corruption campaign in India.

On the basis of a Public Interest Litigation filed in the Supreme Court, the Court ordered a probe in the funds of the Hind Swaraj Trust of Team Anna. Subsequent to the order, Anna Hazare went on a monvrat (decided not to speak) to protest against the order. By enquiring into the funds of the Trust, the Court was doing its duty. The law needs to take its own course. The Rule of Law states that law is supreme and no one, including Anna Hazare, is above it.

The lokpal and lokayukta bill, 2011: the pitfalls

The Lokpal and Lokayukta Bill, 2011 suffers from major infirmities. The major flaw in the Lokpal and Lokayukta Bill, 2011 is that it does not confer constitutional status on the institution of Lokpal. This implies that the Act can be struck down through an ordinance. Article 123 of the Constitution on India confers upon the President the power to promulgate ordinances in the period of recess. Even if only one House of the Parliament is functioning, the President can still promulgate ordinances. Since the President needs to act on the advice of the Council of Ministers, who are likely to be the ones forming the Central Government, if it is in the interest of the Central Government to repeal the institution of the Lokpal they may do so. Hence, it is easy to repeal the institution of Lokpal as it exists under the Act. This has been witnessed in Haryana where an anti-corruption ombudsman was established by a legislative instrument. When the Lokayukta was on the verge of catching politically powerful people involved in corruption, the Lokayukta Act was repealed by an ordinance promulgated by the Governor in accordance with Article 213 of the Constitution of India. Hence, the institution of the anti-corruption ombudsman was abolished, and the corrupt politicians were let off. This is the situation of the present Lokpal and Lokayukta Bill as well. On the other hand, if the Lokpal was granted constitutional status, it would become difficult to repeal it. For such an act, an amendment would have to be made, in accordance with the Constitutional provisions.

Secondly, the private sector has been kept out of the Lokpal and Lokayukta Bill, 2011. This is a surprise, especially since we are witnessing the era of privatization. At this stage of economic development, we need regulation in the private sector. India is a welfare state. It has to achieve the right balance between the doctrines of laissez faire and that of welfare state, which can only be done by imposing effective and reasonable restrictions. The major beneficiaries of corruption are private companies, who offer bribe to the government officials and make them corrupt. These private companies must also be included within the jurisdiction of the Lokpal and must be made accountable for spreading corruption. It is only when they offer huge amounts of bribe that public servants are lured into being corrupt. Anna Hazare’s team was largely backed by NGO’s funded by private companies. These NGO’s have also been, to a great extent, kept out of the jurisdiction of the Bill. By disgracing the government, the private sector is pushing for a second round of privatization at a much larger level across the country. This could result in more land acquisitions from farmers and tribals for the establishment of Special Economic Zones and for mining activities.

Section 4 of the Lokpal and Lokayukta Bill, 2011 provides for a five-member selection committee to choose the chairman and eight other members of the Lokpal. This Selection Committee which consists of the Prime Minister, Leader of Opposition in the Lok Sabha, Speaker of the Lok Sabha, the Chief Justice of India or a judge of the Supreme Court and one eminent jurist provides the Central Government discretion in the process of appointment of the Lokpal and hence political control over it. Such a provision defeats the purpose of the Act, since it gives the Government control over the Lokpal which may hamper corruption proceedings against the Government. It seems highly unlikely that the members of the Lokpal chosen by the Selection Committee will ever work against the interest of this very Committee. Given human nature, the Lokpal will seldom work against the political concerns of the members of the Selection Committee and people of their party affiliations.

Section 4 of the Bill provides for reservations based on religion in the Lokpal. This is unconstitutional and can lead to the Act being struck down, if ever challenged in the Court of Law. Reservations cannot be granted on the basis of religion, but only on the basis of identified backward classes. In T Muralidhar Rao and others vs. The State of Andhra Pradesh , a seven member High Court bench of Andhra Pradesh held that reservations based on religion are unconstitutional.

Reservations based on religion are ultra vires the Constitution because of a variety of reasons. Firstly, Article 14 of the Constitution of India guarantees equality before law and prohibits discrimination on grounds of religion, race, caste, sex or place of birth. This is reiterated in Article 16(2).Article 15(4) of the Constitution of India provides that the state can make reservations for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. It does not provide for reservations on the basis of religion. Secondly, India is a land of many religions. The nation can not afford to give reservations to all religions because that would surpass the limit of 50% as laid in Indra Sawhney Case . Thirdly, giving exclusive reservation based on religion will lead to unscrupulous people embracing those religions to avail the benefit of reservation. Fourthly, if a person belongs to the so called “reserved religion” and also belongs to social and economic backward class or Scheduled Tribes or Scheduled Caste, then it will result in double enumeration.

It is constitutionally permissible to include a religious group within a backward class list, but it is constitutionally impermissible to make religion as the basis for the identification of backward classes. In Kerala and Karnataka, all Muslims have been included in OBC category, because the group as a whole fulfils all the other criteria of social and educational backwardness warranted by articles 15(5) and 16(4). The creamy layer filter, which identifies individuals and not groups, removes those persons who cannot be designated as backward.

The proposed Act has within its jurisdiction the Prime Minister. Bringing the Prime Minister under the Lokpal will be an insult to the mandate of the electorate. The Parliament is the best forum a democracy can trust to enforce the integrity of the office of the Prime Minister. A cumulative reading of Article 53(1) and Article 74(1) of the Indian Constitution states that the Prime Minister of India is the head of the Council of Ministers, which aids and advises the President in taking vital executive decisions. The President is only a ceremonial head. The real head of the Indian democracy is the Prime Minister. The ‘aid and advice’ rendered to the President is binding on him. As held in S.R. Bommai v. Union of India , this advice is not open to judicial review. When it is not open for judicial review, it cannot be reviewed by any quasi-judicial body like the Lokpal as well. Other than taking these executive decisions, the Prime Minister has traditionally been the Minister-in-charge of the Departments of Space, Atomic Energy, and Ministry of Personnel, Public Grievances and Pensions . Besides this, he is also the Chairman of the Planning Commission of India. The Prime Minister exercises discretion in allocation of the funds from the Prime Minister’s Relief Fund. Having the office of the Prime Minister under the jurisdiction of the Lokpal will have a domino effect on all these functions of the Prime Minister and can threaten the stability of the system.

The Prime Minister represents the country at the international level in many forums, meetings and delegations which require the attendance of the highest government office. If the office of the Prime Minister is open to the jurisdiction of the Lokpal, it will result in a loss of faith in the Indian representative at the international level. Loss of faith in the Indian representative internationally may lead to instable foreign relations.

The proposed Act has within its jurisdiction the Judiciary as well. Subjecting judiciary to the normal process of criminal prosecution would not be conducive to the preservation of judicial independence. Indian Judiciary is becoming more accountable by the day. India recently witnessed the first impeachment in the Rajya Sabha of a High Court Justice, which pressurized him to resign subsequently. The nation needs a comprehensive judiciary accountability bill to provide an in-house departmental mechanism to deal with errant judicial decisions by means of censure, warning, suspension or removal within the judiciary .

Section 20(5) of the Bill requires investigation in a corruption case to be completed within a period of six months. It allows an extension of six months for reasons to be recorded in writing. However, there are no limits on the number of occasions when such an extension may be allowed. With such an ambiguous provision, speedy disposal of cases will become a utopian dream. We are already plagued with a judiciary burdened with a huge backlog. Unless this ambiguity is done away with, the newly established Lokpal courts will have a similar future.

Section 24 and 85 of the Bill require that the Lokpal shall send a copy of the investigation report to the Competent Authority (Lok Sabha, Prime Minister, Speaker or Chairman at the Centre or the Legislative Assembly, Chief Minister, Speaker or Chairman at the State level). The Bill, as tabled before the Lok Sabha, required the Competent Authority to table the report in the House and then communicate the action taken to the Lokpal in ninety days. However, the Bill as passed by the Lok Sabha forgoes this requirement. Hence, there is no mechanism to make sure that an action is taken by the Competent Authority against the person charged with corruption.

Due to objections raised in the Lok Sabha, the Bill would be applicable in the states only if the state gives consent for its application. Uniform standards dealing with corruption across the states is just. A single enactment subsuming both the Lokpal and the Lokayukta enactment would be desirable and valid. It does not encroach upon the federal character of India. India is a signatory to the UN Convention against Corruption since 2005, ratified in 2011. The proposed Act seeks to implement an international treaty as recognized in Article 253 and is treated as one in List III of the 7th Schedule. Such parliamentary legislation under Article 253, if enacted, can lead to the repealing of State Lokayukta Acts, subject to the power of any state to make State specific amendments to the federal enactments after securing Presidential assent for such State specific amendments. Article 51(c) of the Directive Principles of State Policy deals with fostering respect for international law and treaty obligations. This provides for an additional validating basis for a single enactment to deal uniformly with corruption across the nation.

The proposed Act does not strongly stipulate the accountability of the Lokpal. There is no guarantee that the persons constituting the Lokpal will not be corrupt. There are no guarantees to human nature. The proposed Act envisages conferring too much power on this unaccountable institution of the Lokpal. One must remember Lord Acton, when he said that power corrupts and absolute power corrupts absolutely. Hence, the establishment of the Lokpal at the Centre will not serve the purpose of combating corruption, but will only lead to the creation of a parallel bureaucracy.

Conclusion

This episode is a disgrace in the history of Indian democracy. The nation realized that India is diseased with corruption and instead of making the already existing structures free of corruption through better checks and balances, the Lokpal and Lokayukta Bill, 2011 attempts to create another superstructure. This superstructure will be prone to corruption, if not more than that in the existing system, due to excessive delegation of powers. The movement could have led to better electoral education and electoral reforms. People could have been made aware of the importance of electing good parliamentarians. But instead the civil society opted to push for the creation of the ‘Lokpal’. The cost of maintaining such a superstructure will be an additional burden on the exchequer. Creation of more superstructures is not a guarantee for efficiency. Change has its own momentum and must be brought about only by constitutional methods.

As the Bill stands, the creation of the Lokpal at the Centre will do little to check corruption. India already has many systems in place to act as checks and balances on the public officials to combat corruption. Instead of creating the Lokpal, these systems should be strengthened to effectively control the menace of ever-growing corruption in India. India needs responsible changes to make the existing checks and balances effective and not new unaccountable superstructures.

YUKTI CHOUDHARY is a law student pursuing her LL.B (Hons.) from University of Delhi.
 
REFERENCES
  1. PV Narasimha Rao v. State AIR 1998 SC 2120

  2. "Problems of Redress of Citizens Grievances", Interim Report of the First Administrative Reforms Commission, 1966

  3. "Executive and Public Administration", Chapter 6 of the National Commission to Review the Working of the Constitutiton, headed by M.N.Venkatachiliah

  4. Unstarred Question No. 385, Lok Sabha, Answered on February 23, 2011

  5. Forty- Eighth Report on the Lokpal Bill, 2011

  6. Constituent Assembly Speech, November 25, 1949

  7. Gian Kaur v. State of Punjab JT 1996(3) SC 339

  8. Mukul Sharma, The Making of an Authority: Anna Hazare in Ralegan Siddhi

  9. Writ petitions Nos. 15267, 15268, 15269, 15270, 15330, 16562, 17086, 18494, 25852 of 2007 and 17679 of 2008, decided on 08-02-2010, decided in the High Court of Andhra Pradesh

  10. Indira Sawhney vs. Union of India (1992 Supp. (3) SCC 217)

  11. S.R.Bommai v. Union of India (AIR 1994 SC 1918)

  12. http://pmindia.nic.in/pmsoffice.php

  13. Forty- Eighth Report on the Lokpal Bill, 2011
 
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