The controversy surrounding the Lokpal Bill is likely to plunge the nation into yet another round of agitations and street protests. The obvious reason being that the Standing Committee of the Parliament that submitted its draft report to the Lok Sabha last week has notably omitted a number of key demands of Team Anna.
Among its notable recommendations, the Standing Committee has made a strong case for conferring constitutional status to the Lokpal and has favoured the setting up of Lokayuktas at the state level under the proposed Lokpal law. In addition, the Committee has recommended bringing Chief Ministers under the Lokayuktas. An important inclusion by the Committee is its recommendation to have 50 per cent reservation for members of SC/ST, OBC, minorities and women in the seven-member Search Panel for choosing a Lokpal.
Referring to the more contentious provisions of the report, the Standing Committee, however, has recommended keeping the Judiciary, and Group C Group D officials of the bureaucracy outside the purview of the Lokpal Bill. Further, it has also recommended that the CBI should not be merged with the Lokpal, and has excluded the whistleblowers and the redressal of public grievances from the Bill. On the issue of inclusion of the Prime Minister within the ambit of the Bill, the Standing Committee has left the question open to both the Houses of Parliament.
It is no wonder that the Team Anna has expressed its displeasure in the strongest terms dubbing the draft Lokpal Bill as "Enquiry Pal" and importantly the report has paid scant regard to the "Sense of House’ pledge made by the Parliament recently. According to Team Anna, exclusion of Group C & D officials from the purview of the Lokpal would effectively excuse nearly 60 Lakh officials from the grip of an anti-graft legislation and render it ineffective in eliminating rampant corrupt practices at the very grass root level. Further, by not merging the anti-corruption wing of the CBI with the Lokpal, investigations would remain under the watchful eye and influence of the Government and would not culminate in free and fair investigations that identifies the culpable officials and subjects them to the rule of law. Similarly, exclusion of the judiciary, grievance redressal and whistleblowers protection from the scope of the Lokpal will result in a Lokpal "reduced to an empty tin box with no powers and functions." But are the recommendations of the Drafting Committee really a dud? Is it no better than the previous draft circulated by the United Progressive Alliance in last August? A quick review of the draft report in terms of the most contentious provisions would help to put the issue in proper perspective:
Where are the Controversies?
Inclusion of the Prime Minister
While the Government’s version of the Lokpal Bill had restricted the jurisdiction of the Lokpal to the Prime Minister after he or she has demits the office, the Standing Committee on the other hand has chosen to leave this crucial decision to the wisdom of the Parliament. However, the committee has presented Parliament with three options in this regard: complete exclusion of the Prime Minister from the jurisdiction of the Lokpal, inclusion of the Prime Minister only after he or she demits the office and inclusion of the Prime Minister subject to stringent safeguards.
Inclusion of Lower Bureaucracy
The jurisdiction of the Government’s Lokpal Bill is also limited to Group A & B employees of the bureaucracy thereby excluding Group C and Group D employees of the lower bureaucracy. The Government’s Lokpal Bill also does not contain any provisions for the setting up of Lokayuktas at the state level. The Standing Committee has more or less toed to the Government version by recommending Group C & D employees to be kept out of the purview of the Lokpal and rather be brought under the Chief Vigilance Commission while officers of the same category at the state levels are brought under the Lokayuktas.
Judiciary
On the issue of inclusion of the judiciary, the Government has adopted a stance of keeping the judiciary independent of the Lokpal. Instead the Government has proposed the Judicial Accountability Bill to look into matters of corruption by the Judiciary. The Standing Committee in its report has also favoured the exclusion of the judiciary from the ambit of the Lokpal and bringing it under the scope of the Judicial Accountability Bill. In addition to this the Committee has also proposed the creation of the National Judicial Commission (through constitutional amendments) for the appointment of judges and ensuring their accountability.
Grievance Redressal and Citizens Charter
With respect to enforcement of citizen’s charters, the Government’s version of the Lokpal Bill has excluded the redressal of citizens’ grievances from its scope. Instead, the Government is considering a separate bill: The Citizen’s Grievance Redress Bill, 2011 for the enforcement of citizen’s charters and the creation of a grievance redressal mechanism. The Standing Committee in its report has also recommended a separate grievance redressal mechanism for the enforcement of citizen’s charters separate from the Lokpal Bill.
Is there a Way out?
As said at the beginning, the Report of the Standing Committee has generated plenty of debate and is surely going to keep every law-maker busy in the week to come. Significantly, the report has polarised between Team Anna plus opposition vs. The Government. Yet, given very high stakes and serious constitutional and governance issues involved in framing a legal and institutional architecture to fight graft, the recommendations of the Standing Committee and the counter arguments of Team Anna needs reasoned analysis to put issues in correct perspectives.
The basic tenet of constitutionalism and a premise on which our State is founded - the rule of law must prevail at every step in our democracy. This necessarily means that the Prime Minister and Judiciary should be made accountable. While it is imperative the Prime Minister’s Office should not be hindered by a flurry of vexatious and mischievous obtrusions in the form of complaints, it might be worthwhile to bring the Prime Minister within the purview of the Lokpal’s subject to constraints. Experiences in other countries such as Finland have shown that Heads of States may be brought under the scope of the powers of the Ombudsman, albeit subject to adequate safeguards.
As far as the judiciary is concerned, it is important that the same be dealt with separately so as to maintain the separation of powers and not accord the Lokpal with unbridled powers. Further, if the Judges Accountability Bill is being suggested as an alternative to the inclusion of the judiciary in the Lokpal Bill, then it is absolutely essential that the Bill includes provisions for the criminal prosecution and investigation of Judges who have found to be corrupt.
It is imperative that the institution of the Lokpal should not be over burdened and made unwieldy. Even though Group C and Group D employees form a massive chunk of the bureaucracy and the cause of most of the corruption at the grass root level, it might be too ambitious to expect a 10 member Lokpal to address the daily grievances of the common man in this regard. Hence the creation of a
Kendriya Satarkta Lokpal as suggested by the NCPRI or the creation of Lokayuktas in each state to deal with the 60 lakh employees of the lower bureaucracy in ensuring their accountability and transparency is worthwhile. Further, such authorities could be made accountable to the Lokpal and would be obligated to report to the same. An alternative as suggested by the Standing Committee would be to bring members of the lower bureaucracy under the Chief Vigilance Commission after widening its powers. All these provisions could be dealt with under a single legislation and would ensure an efficient division and allocation of responsibilities.
Furthermore, the Citizens Grievance Redress Bill, 2011 (if suitably amended) could be a more appropriate mechanism to deal with the issue of public grievances considering the complexity of the issue of public service delivery and grievance redressal mechanisms in India. Public Service Delivery in India is riddled with several difficulties both structural and practical and ordinary citizens are denied basic services through many loopholes. This pinched ordinary citizens particularly the disempowered more than the prevalence of corruption. Hence, there is a need for a decentralised mechanism that can address the specific problems of the common man satisfactorily. An overburdened centralised Lokpal will be unable to oversee the enforcement of citizen’s charters in every public department/authority effectively and will eventually collapse due to volume of grievances.
Lastly, both the Government’s version of the Lokpal Bill and the Standing Committee’s report has unanimously pleaded to protect the independence of the CBI (Central Bureau of Investigation) from the Lokpal. However, it is significant to note that the fundamental need for the Lokpal was felt in insurmountable proportions due to the requirement of an independent Ombudsman free from the shackles of governmental influence and authority. Hence, it is imperative that the CBI’s anti-corruption wing be made independent of the Government’s control to ensure that any investigation against a public official is conducted freely and fairly devoid of the overarching presence of Governmental fear and control. This country desires an independent Lokpal that is effective, efficient and pragmatic and at the same time strong enough to ensure that the values of accountability, transparency and honesty prevail in governance.
(Arjun Kapoor is a Research Intern with Observer Research Foundation)
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