Originally Published 2011-09-03 00:00:00 Published on Sep 03, 2011
After Sweden introduced the office of the Lokpal or Ombudsman in 1809, 125 countries across the world have enacted statutory laws for the creation of such an institution to tackle the problem of corruption and bring in accountability.
Lokpal Bill: Some Thoughts
The recent protests over the immediate need for the enactment of a Lokpal Bill by Parliament to tackle corruption at the central and state levels has led to a public debate on the issue. This is not the first instance of the idea of a Lokpal being instituted to tackle grievances (corruption in financial matters and accountability of public officials) of individual citizens against public officials. The Lokpal Bill was first introduced in Parliament in 1968 and since then has been introduced in Parliament on 8 subsequent occasions, the last time being on August 4, 2011.

It is the version of the bill introduced in the ongoing monsoon session of the Parliament that is the subject of much debate in the country. The bill has been heavily criticized by members of the civil society and political parties, and has led the civil society to propose an alternative version titled the Jan Lokpal Bill (Jan connotes the role of the civil society in framing the bill). The National Campaign for People’s Right to Information and other civil society activists have also came up with their versions and all are before the Standing Committee of Parliament.

The office of the Lokpal or Ombudsman was first introduced in Sweden in 1809 to receive and investigate complaints against public officials and departments falling within the ambit of the Government. Over 125 countries across the world have since then enacted statutory laws for the creation of an institution that reflects the essential values of accountability in financial matters as well as examination of government policies and programmes from the point of view of accountability. The success of an ombudsman type institution rests upon four fundamental principles – independence, impartiality and fairness of procedure, credible review process and confidentiality. Traditionally, Ombudsmen were officers of Parliament with recommendatory powers. But in the 21st century, the office of Ombudsman is tasked with a variety of roles ranging from investigating complaints of maladministration and corruption received from individuals or taken up by the Ombudsman suo motu, inquiring into allegations of human rights violations and examination of government policies and programmes from the point of view of accountability.

The Lokpal Bill as proposed by the Government is one institution meant to tackle corruption. It only includes the higher bureaucracy and the elected representatives while leaving the both the judiciary and the Prime Minister out of the ambit of Lokpal. The Jan Lokpal in contrast proposes to bring all the actors (judiciary, bureaucracy and elected representatives) within the ambit of one overarching body. It also seeks to include grievance redressal and protection to whistleblowers within the same act.

This article will essentially underline the features of the third Lokpal Bill which has received relatively less attention and whose merits have not been discussed comprehensively in the public. At the outset, it is necessary to appreciate the fact that setting up even one institution is not the answer to the systemic corruption that exists in India today. As of date, there are about 42 lakhs Central Government employees and to address the corruption within this one category of government servants itself (judiciary and elected representatives excluded) runs the risk of the Lokpal being burdened with a huge backlog of cases. It also has the disadvantage of placing too much powers in the “supposed infallibility” of one institution. In this context, it is necessary to understand some of the points mentioned in the bill drafted by Aruna Roy led NCPRI (National Campaign for People’s Right to Information).

First and foremost, NCPRI focuses on a “Lokpal Basket of Measures” as opposed to one sacrosanct institution that is being proposed by the other bills. The logic of having one powerful institution is borne out of the skepticism that a single institution might become too unwieldy and powerful to tackle corruption effectively at levels of the government. The measures are a mixbag including strengthening of existing institutions as well as building new institutions. On one hand, it supports the Lokpal Bill and the legal creation of an independent body but it purports to do so by equally strong simultaneous measures -- the strengthening of the already existing institutions.

Corruption as it exists in India today permeates every branch of the government as well as corporate corruption. It is necessary to recognize that the ambit of corruption in India covers the bureaucracy (both State and Central) – at both the higher and lower levels, the judiciary at all levels and the elected representatives of the people (Central, State and District level) and even the private sector. It is through this prism that the measures proposed by the NCPRI should be perceived which recognizes that corruption as it exists in India today cannot be solved by a single approach and requires a multi-pronged strategy at different levels of the government.

It envisages strengthening of the Central Vigilance Commission as well as the State Vigilance Commission to tackle corruption in the middle level and lower bureaucracy. The Central Vigilance Commission as of date lacks the adequate power to investigate cases of corruption and it is proposed that the CVC Act be amended to give the body a separate prosecution and investigative wing. It will co-exist with the proposed Lokpal Body as proposed by the Jan Lokpal Bill whose primary focus will be handling corruption cases of elected representatives and “Group A” officials of the Central Government.

On the question of the judiciary, the NCPRI bill leaves the judiciary out of the ambit of the Lokpal, and focuses instead on strengthening the Judicial Accountability and Standards Bill which is pending in Parliament. The judicial accountability bill will cover both professional misconduct and corruption simultaneously. Cases of corruption against the judges will be tackled by a judicial oversight committee chaired by a former Chief Justice of India and its members constituting of a Supreme Court judge chosen by a collegium of judges, the Chief Justice of a High Court also chosen by a collegium, two non-judicial members chosen by the Vice-President, the Chief Justice of India, the leader of the Opposition in the Lok Sabha as well as the Prime Minister of India. This will have a dual impact i.e. preserving the independence of the judiciary by keeping it separate from the legislature and the executive and also ensuring that corruption at all levels of the judiciary is tackled effectively. This provision addresses the concerns voiced by both the proponents of the Government sponsored bill as well as the Jan Lokpal Bill.

Another important aspect of the NCPRI Bill is that the grievance redressal mechanism should be tackled by a separate body i.e. Public Grievance Commission instead of being covered within the ambit of Lokpal. The Commission will tackle corruption from a conceptually different angle i.e. the delivery of public services. Consequently, in every government department the position of a grievance redressal officer will be established with the exclusive authority to deal with such complaints. His powers extend from timely delivery of services (in instances of violations) as well as imposing fines on the erring officers whenever necessary. Though innovative in approach and parallel to the concept of Information Commissioner under the RTI Act, it will essentially involve adding another layer to the bureaucracy in the government, which will involve both monetary resources and potential bureaucratic hurdles.

The NCPRI version has another proposal hitherto overlooked i.e. the position of the whistleblower which is covered under the Public Interest Disclosure and Protection of Persons making the Disclosure Bill, 2010. The previous version of the government bill perceived as too weak by many civil society groups has recently got a fillip from a Parliamentary Standing Committee which has recommended the inclusion of ministers, lower and higher judiciary, armed forces, security and intelligence agencies under the ambit of the Public Interest Disclosure and Protection to Persons Making Disclosures Bill, 2010. A foolproof mechanism under the ambit of the bill to protect the identity of the complainant is also being discussed without which the anti-corruption architecture in India will lack a vital link in the process to tackle corruption. Another contentious area for the Public Interest Disclosure and Protection of Persons making the Disclosure Bill, 2010 is the implementation agency i.e. the Central Vigilance Commission has been accused in the past of being inefficient on matters of protection of whistleblowers or even taking the requisite action on the basis of their complaints. The question of strengthening the CVC or instituting a new body within the proposed bill is also another question that needs to be addressed.

On the question of the Prime Minister which has drawn the most polarized reactions from different groups, it is necessary to understand that the Prime Minister too is a public servant and all countries which have an ombudsman like body in their governance structure have brought the Prime Minister under their ambit. But it is necessary to understand the important function performed by the Prime Minister in a parliamentary democracy as the leader of the Government and the apex member of the Union Cabinet. Given the fact that the functions of the Prime Minister on issues of foreign policy, defense is critical to the sovereignty of a nation, the need for immunity in certain matters is a pre-requisite. Therefore including the Prime Minister with certain safeguards as proposed is another aspect of the NCPRI Bill which needs to be given due consideration.

While the Lokpal “basket of measures” proposed by NCPRI is indeed ingenuous in scope and ambition, its very strength of a clutch of institutions to tackle corruption can also prove to be its nemesis. Most of the recent scams like 2G, Commonwealth Games etc. have involved officials at all levels of actors across all sectors. In this scenario, it will become a challenging task for all the anti-corruption institutions to come across as one single unit to effectively and efficiently punish the culprits. This has also been the rallying point for the critics of the NCPRI version of the Lokpal Bill.

As the Parliament begins to debate the nature and scope of the Lokpal Body, it is essential to move with caution and consider all divergent views expressed by both the government and civil society as the bill which will eventually emerge is not only about tackling corruption in financial matters but also about how it can strengthen the vitality of institutions critical to the delivery of public services thereby providing a strong foundation for a vibrant and healthy democracy.

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