Lokpal In India – What Next?

The year 2011 ended leaving dissatisfaction all round, and the much-anticipated law creating a strong, independent, high ombudsman is delayed.

Inevitably, there is a lot of blame-throwing and finger-pointing going on. What went wrong, and what can we do to set things right?

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Even in the best-case scenario, it is hard to persuade lawmakers to create a high ombudsman that will swiftly investigate and ensure punishment acts of corruption and wrong-doing by those in political executive, legislature and senior bureaucracy. It requires great resolve, tact, the spirit of accommodation, and a pragmatic approach.

In this case, all players – government, political parties, opposition, and civil society – committed follies. The government failed to incorporate a few more key provisions inspiring confidence in the public; and where the bill has good provisions, it failed to take, its alliance partners on board, and failed to effectively communicate the strong features of the bill.

Therefore its approach was reactive, defensive and delayed. The parties that opposed the bill indulged in cynical grandstanding and allowed the impossible best to be the enemy of the possible good.

They allowed red-herring like “assault on states” to dominate the debate and kill the Bill, and went back on the commitment of the parliament.

Civil society, instead of understanding and acted with unconcealed contempt and hostility. Now is the time for all players to take a deep breath, and spare some time for sober reflection.

The Lokpal and Lokayuktas Bill Parliament have certain deficiencies. The Ombudsman has no suo moto powers and has no investigative agency of its own.

The fetters on CBI and ACB still remain in respect of cases not monitored by Lokpal / Lokayukta in the form prior government clearance for investigation (Section 6A of Delhi Special Police Establishment Act), and prior approval for prosecution (Section 19 of Prevention of Corruption Act, and section 197 of CrPC).

State ACB’s remain completely under government control in respect of appointment of director and other officials, and superintendence and guidance. These weaknesses need to be addressed.

However, the Bill did propose extremely strong and independent Ombudsmen. Everybody – PM, CM, Ministers, MPs, MLAs, senior officials – is brought within the jurisdiction of Lokpal / Lokayukta.

Junior officials and employees brought under Lokpal through CVC. CBI director will be appointed by a totally bipartisan committee of PM, Leader of Opposition (LOP), and CJI, in which government has only one vote out of three. CBI officials will be appointed by a five-member committee of the full CVC and two secretaries to the government in consultation with the Director.

The CBI and ACB will be accountable to Lokpal / Lokayukta in respect of all investigations ordered by them. Prosecution of cases and the creation of special courts are within Lokpal / Lokayukta purview.

Attachment of properties by Lokpal / Lokayukta and confiscation by special courts are incorporated in the Bill. Provisions relating to appointment and removal of Lokpal / Lokayukta ensure their independence. All these and other provisions give real and substantive authority to Ombudsmen.

The talk of a weak and partisan Lokpal / Lokayukta is a sad reflection or political rhetoric divorced from facts. In particular, two issues dominated the Parliamentary debate and derailed the legislation.

They pertain to the autonomy of CBI and Constitutionality of Lokayukta provisions. A detailed examination of these two issues would be useful in finding answers to resolve the impasse.

The director of CBI will be appointed by the committee of PM, LOP and CJI. This is an extraordinary provision, which is not applicable even to the Constitutional authorities like Election Commission, CAG, UPSC, etc. all officers of the rank of SP and above shall be appointed by the three-member CVC and two secretaries to government, and the five-member committee shall consult the Director on these appointments.

CVC exercises general superintendence of CBI. In respect of cases referred by Lokpal, CBI will report to Lokpal. Similarly, CVC will report to Lokpal in respect of cases referred to it.

In addition to all these provisions, section 38 gives extraordinary powers to Lokpal in respect of corruption allegations against its own officers, and officers and employees of all anti-corruption agencies including CBI and CVC. Lokpal has powers of suspension, prosecution and disciplinary action against erring officials of all these agencies.

In the face of these provisions, it is churlish to argue that CBI will be under government control. The much-talked-about administrative control of the government is limited to two issues – budget and cadre control.

Both these must be understood in perspective. CBI’s real challenge in the future dispensation will not be government control. It will be a capacity – building. There is only 6000 personnel in the CBI with nation-wide jurisdiction. Of these, only about 2000 are investigators.

The number of corruption cases registered by CBI is of the order of 1000 every year. Obviously, these are minuscule numbers in the face of a massive national problem.

ACB's suffered even more in terms of inadequate staff, infrastructure and capacity. We need to have a plan and action programmed to expand CBI almost ten-fold over the next ten years if the agency has to respond to the growing challenge and serve the country effectively.

This should be coupled with adequate infrastructure for surveillance, forensic laboratories, communications, and mobility. Similar capacity – enhancement is required in state ACB. all these require significant budgetary commitments.

While control of the budget should remain with Parliament and government, there should be a firm commitment to expand the agencies and provide adequate resources to them. All the laws in the world cannot improve the situation unless the enforcement agencies are strong and effective.

Regarding cadre control, government’s role cannot be dispensed with, because CBI is largely populated by the official of various other agencies drawn from a variety of sources. Even the senior IPS officials are drawn from states because they belong to an All-India service.

Consequently, several matters of coordination, seniority, encadrement, availability of officials and consent of states and parent agencies can be handled only by the government. Therefore the argument that CBI, in the new dispensation, has no real autonomy is weak and unsustainable.

Clearly, we have to be cautious in creating a strong, independent investigative agency, least we create a state within-state like ISI with its own agenda, and accountable to none.

But there is no case to retain Section 6A of DSPE Act, and Section 19 of PCA and section 197 of CRPC respect of corruption matters.

These sections should be repealed, or amended suitably so that CBI is not fettered in its work. Prior sanction of prosecutions, if still required, can be entrusted to Lokpal. That will guarantee full autonomy of CBI.

There seems to be two competing approaches on CBI’s superintendence. Many argue that CBI must be under the single, unified superintendence of Lokpal, instead of multiple loci of power – CVC for most matters, and Lokpal for matters related to cases referred by it.

Government and many parties seem to be concerned about the dangers of a monolithic, unaccountable organization running amok.

There may also be issues of Parliament’s prestige, and the desire not to be seen to have been dictated by those outside Parliament.

The result is a somewhat inelegant, but well-meant, the combination of measures: CBI director’s appointment by a high-powered Committee with equal participation of government, opposition and judiciary; retaining the existing provisions relating to the cases referred by it; and the overarching powers of Lokpal to deal with allegations of corruption in CBI.

Perhaps one simple way of addressing the concerns of Parliament as well as civil society would be to make all members of CVC ex-officio members of Lokpal, and they would be appointed and removed in the same manner as Lokpal. CVC and Lokpal can thus be seamlessly integrated.

However, the specialized functions of CVC including superintendence of CBI, advice to government on vigilance and corruption matters, and control of vigilance machinery in all government agencies will vest in CVC.

CVC members’ eligibility criteria will remain as they are now, and the practice of a civil servant, a police official, and a banker or financial expert being appointed to CVC will continue, as such a background is necessary to understand the context in which officials operated and decisions are made.

That leaves us with the issue of states’ rights. Article 253 of the Constitution clearly gives Parliament the power to legislate in respect of state subjects for implementing international treaties and conventions.

After ratification of UNCAC on May 1, 2011, Parliament has the obligation to make the law applicable to states. The Bill provides for the same provisions for states as for the union. There is no discrimination.

The Bill does not seek to transfer powers to the union government. Appointment of Lokayukta and all other related matter are dealt within states.

All procedural matters in relation to investigation and prosecution of anti-corruption cases are in any case under Parliament’s concurrent jurisdiction under items one and two of List III.

All incidental service matters will now come under Parliament’s concurrent jurisdiction under Article 253. Several laws have been made earlier in pursuance of international conventions – the laws on money laundering and human right commission are prime examples.

Laws like Right to Information’s Act and the National Rural Employment Guarantee Act have been enacted applicable to states. Precedents invoking Parliament’s jurisdiction clearly exist.

All our Procedural and criminal laws – CrPC, CPC, Evidence Act, and IPC etc have been made by Parliament, and are applicable to states. None of them is seen as an encroachment of states’ right.

In any case, in deference to the wishes of certain parties and in recognition of the need for compromise to obtain Parliamentary majority, the bill has been amended in Lok Sabha providing for the application of the law to states only with their prior consent. Given these circumstances, the argument that the state’s right is violated by making a law that would apply to only those states that consent to it unsustainable.

Now, we have an impasse.

What can be done to salvage the situation? The following two steps would be helpful. First, the government should be willing to strengthen the law in six respects – Suo moto powers to Lokpal / Lokayukta; creation of Lokpal’s own investigative agency; making CVC members ex-officio members of Lokpal; repeal of sec 6A of Delhi Special Police Establishment Act, and repeal or amendments of Sec 19 of Prevention of Corruption Act and Section 197 of Cr PC; same provisions to apply to state ACBs as are contemplated, or already exist, in respect of CBI; and power to Lokayuktas to appoint required number of Local Ombudsmen or Lokadhikaris to deal with corruption in local authorities and at lower levels in each district, but under Lokayukta’s control.

These six provisions will create genuinely autonomous, effective, anti-corruption agencies, and strengthen the Ombudsmen.

These measures would be in consonance with the present features of the Bill, and would not in any way weaken the architecture of the respective institutions.

Second, the Lokayukta provisions should remain in the statute; but the language of amended section 1 could be made even more explicit to unambiguously declare that the Lokayukta and ACB provisions apply to state only after their prior legislative assent by the form of a resolution.

This is a retrogressive step, but necessary to get the regional parties on board to ensure that the Bill is not sacrificed on the altar of states’ rights.

Then the political parties – the national parties, in particular, will have the obligation to demonstrate their commitment is action, either by making the law applicable to states governed by them or enacting even stronger laws in those states.

In this framework, obviously the states should be free to enact stronger laws, and there should be flexibility in adoption of the Parliament’s legislation.

For instance, the state legislature could add new provisions, or amend existing provisions of central law. Or, the state could enact a new law altogether. Section 1 could explicitly provide for all such contingencies.

These improvements and compromises in the Lokpal legislation should be accompanied by other measures. The pending laws on service delivery and grievance redressal (citizen’s charters), whistleblowers’ protection, and judicial standards and accountability should be enacted along with the Lokpal law.

We should ensure that in 2012 at least three more new legislation is in place. The National Judicial Commission for appointment and removal of judges of Higher Courts should be brought in through amendment of the relevant Constitutional provisions so that the distortions in the higher judiciary are corrected.

A new all-India Judicial Service should be created for recruiting subordinate judiciary and to serve as a recruiting base for selection of judges of High Courts.

And a strong and effective law for confiscation of properties of corrupt public servants similar to the SAFEMA Act, 1976 should be enacted on the lines of Law Commission’s draft Bill, and Supreme Court’s observations (AIR 1996 SC 2005).

These legislative measures, together with the Lokpal and Lokayuktas Act, will create a robust, strong, independent, deterrent and effective anti-corruption regime.

If, for some reason, resolution of the issues on Lokpal and Lokayukta takes time, on way out would be for Congress and BJP to bury the hatchet and approve the constitutional amendment in the first instance.

Some eminent jurists believe it may be worthwhile enacting the Constitutional amendment with bipartisan support outlining the general principles of independence and effectiveness and making it mandatory of Lokpal and Lokayuktas to be established.

The finalizing of details and hammering out an acceptable compromise need not hold up a mandatory institutional framework being incorporated in the Constitution.

This will also address the issue of “rights of states” once and for all. The failed Constitutional amendment Bill provides for the appropriate legislature making the laws governing the details of Lokpal / Lokayukta.

This will address both the need for Constitutional mandate and the federal principle.

In reality, there is no real reason why an acceptable legislation cannot be enacted soon, provided there is goodwill, mutual trust, and genuine resolve to confront corruption.

It is never too late to act. The last year has taught us valuable lessons. In the New Year, we should apply these lessons, and act wisely and in concert to ensure the creation of effective, independent, anti-corruption regimes and institutions all across the country.

The bitterness, mistrust, and acrimony of the past year must give way to greater harmony, resolve, and mutual respect. The nations’ self-image and self-esteem, people’s confidence in the governance process, and India’s global reputation and investor confidence in the nation are all at stake.

It is time to act decisively and swiftly.