With the Union Government conceding to the demands of the fasting civil society leader Anna Hazare to constitute a Joint Drafting Committee with equal participation to Government and civil society, there is a hope that an effective draft of Lokpal Bill would emerge. The idea is to facilitate easy and free complaining process and quick investigation leading to prosecution of the corrupt individuals in high places. But perhaps one of the most important aspects to be considered is the threat of imposing fines and jail terms for bringing complaints, which will be an ante-thesis to fight the cancer of gratification. The Lokpal Bill 2010 is not just a strange embodiment of powerlessness, but alsopossesses a hidden interest in blocking the complaints with penal threat. Being draconian against ‘complainants’ and ineffective against corrupt, the Bill raises serious suspicions about dubious intentions of the law makers. That explains the nationwide response to the recent anti-corruption agitation led by Anna Hazare. It is undemocratic and against basic tenets of equity and criminal justice to entrust a tribunal with power of summary trial to penalize the citizens for raising voice against bribing of public servants. The Drafting Committee, thus, needs to avoid two inherent defects, that of being weak against corrupt; and strong against the voice of complainant, both of which defeat the purpose of the law.
It is a contradiction to empower the Lokpal to penalize complainant without giving it such power against the proved corrupt public official. Section 21(3) of the Lokpal Bill of Union Government enables Lokpal to punish the complainant if ‘complaint is false and made with mala fide intention to harass the functionary’. Section 21(4) has provided that Lokpal could summarily try and punish such complainants with a minimum of one year imprisonment which may go up to three years, together with imposition of penalty up to Rs. 50,000 and compensate public functionary out of the fine amount. A system of criminal justice which punishes a complainant for lodging a complaint if that turns out to be false is dubious. If a system does not facilitate complainants to take recourse to legal action, law will never take its course. If the complaint proved to be malicious and that led to prosecution of innocent, the remedy available under the traditional law systemsis action in a civil court under law of torts for the wrong called ‘malicious prosecution’, leading to a decree for payment of compensation for proved loss. Similarly, if someone maliciously fabricates false evidence or gives false witness leading to capital punishment or imprisonment of innocent accused, he can be sentenced with severe punishment under the Indian Penal Code 1860 (IPC).
Neither IPC, nor Prevention of Corruption Act (1947 and 1988) (PCA) provide punishment for complainant. Instead, the two enactments against bribe provided immunity to bribe-giver from prosecution based on the statement (section 24 of 1988 Act). The hundred and-fifty-year old IPC was the basic tool for combating corruption in public life. A chapter in IPC on ‘offences by public servants’ consisting of sections 161 to 165 provided a legal framework to prosecute corrupt public servants. The scenario of corruption in the aftermath of Second World War was serious, as unscrupulous elements exploited shortages of law to siphon off huge amounts of public money. The Prevention of Corruption Act 1947 was a drastic legal measure to fight evil of bribery. Without redefining ‘public servant’ and other IPC offences, this law added a new offence ‘criminal misconduct in discharge of official duty’ with stipulation of enhanced punishment from minimum of 1 year to maximum 7 years.
Provision of immunity to bribe-giver was considered necessary as he might have been forced by circumstances. If this immunity was not provided, all complainants would become liable for punishment, which would deter them from giving complaints against any corruptpublic official. When PCA 1988 replaced its earlier version of 1947, the provisions of immunity to bribe giver were retained. This fact is mentioned in paragraph 3.1.3 and 3.2 of Fourth Report of Second Administrative Reforms Commission, under the title “Ethics in Governance”, submitted to the Government in January 2007. It is surprising that the same Government moves the Bill with a deterrent punishment threat to complainant, in utter breach of its own report. Though Jan Lokpal Bill vehemently opposed the jail term to complainant, it favoured financial penalties, which also has deterrent effect. When substantial criminal law offers immunity, there is no reason to threaten the complainant.
Since the Lokpal is expected to be watchdog vis-à-vis the integrity of Ministers and Members of Parliament, there is a need to strengthen complainants against politically strong and powerful office holders against whom the complaint is made. There is every possibility that the corrupt leaders and bureaucrats collude and disprove the allegations made by complainant, who does not have the necessary resources to prove the corruption. While under anti-corruption law the State takes responsibility to prove charge of corruption against the accused public servant, Lokpal Bill burdens the complainant to prove it with a threat of penalty.
If a public servant is proved to have accepted any gratification, the law provides that it shall be presumed that the public servant accepted such gratificationas a motive or reward under section 161 of IPC (now section 7 of Prevention of Corruption Act, 1988). This is a very significant presumption that shifted burden of proof to the accused to convince that he was not guilty, unlike the general law where prosecution has to prove the guilt of accused. While the Lokpal Bill provides one year time frame to investigate and prosecute, it gives power to try ‘complainant’ summarily, which is another baffling provision that “terrorise” the reporting against bribery.
There are some more meaningless and format based restrictions which discourage complaints under the Lokpal Bill. For instance, section 12(2) seeks filing of memorandum of allegations only in a prescribed form, with fee and deposit of an amount of money as mandated. The complainant has to submit the certificateof deposit also. Only exception provided is that when the complainant is in any jail or place of custody or in any asylum or other place for insane persons. In which case, the letters will be considered as memorandum of allegations though not in prescribed form.
In my opinion, all public servants should be brought within the ambit of the Lokpal. That includes all legislators including Ministers right up to the Prime Minister, government officials and Judges. This would take care of the three estates of democracy — the Legislature, Executive and Judiciary. The President of India as Head of State, and the Chief Justice of India, however, should be exempt from the Lokpal’s purview.
There are serious dangers of investing both investigating and prosecuting powers in thehands of the same institution. The Lokpal should be authorised to initiate, order and direct investigations. It can also be given certain investigative and prosecuting powers such as the right to lodge FIRs, as in the case of the Karnataka LokAyukta. But the Lokpal cannot become the sole investigative and prosecuting agency in corruption related cases. It should, however, have the authority to order investigation and on the basis of the findings initiate prosecution. It should be allowed to monitor prosecution so that the public prosecutor is accountable to the Lokpal. But it cannot take over all investigating and prosecuting powers from other, established organs of the State.
Naturally, safeguards must be built to create firewalls against abuse and misuse. That is why the Lokpal cannot be the sole investigating and prosecuting agency. It should only initiate the process. The Lokpal is not a substitute for the judiciary.
Had all other systems such as the CBI functioned independently and effectively, the demand for immediate enactment of a Lokpal Bill may not have arisen. Further, the humungous scale of corruption under this regime, particularly the 2G spectrum, CWG and Adarsh Society scams have caused people to lose faith in the existing official mechanisms, especially the CBI. It is notdesirable that the Supreme Court should intervene constantly to direct investigative, prosecuting or legislative bodies and direct their conduct. The SC’s flawed observations in the Karnataka MLAs case is an example of the fact that the apex court is not infallible and its pronouncements may give rise to more complications than it can solve. Therefore, a parallel independent, body is needed to deal with corruption matters since the Executive has a tendency to control investigative and prosecuting agencies and cover-up scams. This will in fact help the courts. But I must emphasise that the Lokpal is not the substitute for all existing authorities.
The biggest problem with our legal system is the inordinate delay in bringing cases to closure. Shockingly, not a single politician has till date been convicted under the Prevention of Corruption Act. Our laws are comprehensive, often tougher than stable Western democracies. But they have not delivered the desired results. Had results been there, the clamour for a Lokpal may not have become so loud. We need special, fasttrack courts to deal with corruption cases. I am also a votary of televised trials in corruption cases so that there is full transparency and people can follow the progress made by prosecuting agencies.
The Drafting Committee would have to avoid all such unreasonable and draconian provisions which weaken the complaining mechanism. One such draconian provision of the Lokpal Bill is that Lokpal can punish with six months of imprisonment anyperson who intentionally offers insult against Lokpal or members of it while verifying the complaint (section 19) The Bill does not use expressions like contempt or defamation, but penalizes ‘insult’ without defining what it is. Further, under ‘removal of doubts’, section 28 the Bill provides that Lokpal would not inquire into allegations of corruption against President, Vice President, Speaker and Deputy Speaker of Lok Sabha, Chairman and Deputy Chairman of Rajya Sabha, Chief Justice or any other Justice of Supreme Court or High Courts, CAG, Attorney General of India, Chairman and members of National Commission of Scheduled Castes and Scheduled Tribes, Chief Election Commissioner and other commissioners, Chairman and members of Union Public Service Commission or any other authority appointed under Constitution of India. There is no logic or reason to immune the persons occupying these offices from enquiry!
The Lokpal has power of civil court in securing evidence and summoning documents, to complete inquiry within six months with possible extension for another six months for reasons recorded, if it can find complaint substantial and it can only recommend further action, which means it may not lead to sentencing consequences. It will forward report to the competent authority which has to lodge an action taken report and submit it to legislature. It is surprising that Lokpal could send complainants and critics to jails, but it could do nothing penal for those public servants against whom the complaints were proved to be substantial. Ultimately it will end up legally terrorising the complainants and critics. This Bill will, thus, block anyinformation or complaints against corruption offering greater immunity to the corrupt public servants. It makes little sense to constitute such a Lokpal which would be a mere retrograde and useless institution incurring recurring expenditure of public money. There is no point in entrusting toothless institutions like Lokpal with such penal powers to punish just for complaining. A Lokpal which is a strong penal body against weak complainants and a weak office against strong and corrupt public servants, will be of no use.
Personally, I think the coverage should include all government servants, political entities and even Public Sector Corporations. However, there could be notable exceptions in terms of the position held, for example President and Prime Minister of India etc. and certainly Judges should not be included. Although the present Prime Minister is pressing for inclusion of the Prime Minister as well, but it is my view that governance of the country cannot be paralysed by having frequent allegations against the chief executive of the nation, and the dignity of the office must be maintained.
Personally I think the institution of Lokpal must have investigative and prosecuting power alongwith all safeguards creating a Chinese wall between investigative and prosecution departments. The two departments must not be allowed to intermingle with each other. Otherwise objectivity would suffer if the two departments are allowed to intermingle.
Reasonable safeguards have to be built in. Firstly, false and frivolous complaints can be visited with both by penalty and prosecution. Secondly, the complaint must go through a filtering mechanism, it should at least be a two stage process. Thirdly, there must be proper legal recourse against such complaints.
Every institution presupposes honest and genuine implementation. The best institutions fail if the manner of administration is bad. It presupposes outstanding, honest, capable lokpal; than that what is needed is honest and good investigative machinery. The police and the investigative machinery have to be honest and straightforward. It presupposes an efficient and time bound decision system and these all will have to be developed over time. It is never merely the deterrence of law or bare bulls character, it is the spirit and the evolution which decides how an institution is allowed to take root.
As per section 13, the complaint could be rejected if it was filed beyond five years of alleged incident, or if it is manifestly false and vexatious. If the incident of corruption is revealed after a five year term of the Government, should not Lokpal inquire into it? Those complaints which are not rejected, as per the Bill should be forwarded to the competent authority for its sanction. The competent authority has the power not to consider or reject sanction. Thus, Lokpal Bill mandates that complaints should be routed through the Competent Authority or provides that Lokpal should forward complaints to competent authority (section12). Jan Lokpal suggested giving powers to inquire suomotu or to lodge an FIR or direct the investigating agencies to investigate. Strangely, it excludes the public servant from lodging a complaint; section 12 says only a person other than a public servant can complain. In fact the public servants are more aware about the corruption of politicians and are victims oftheir corrupt instructions. While talking about encouraging and protecting the whistle blowers, it is totally unjustified for drafting such a prohibition. Jan Lokpal suggested protection to whistle blowers.
It appears that the Prime Minister (PM) also could be brought under the purview of inquiry by Lokpal. But, in effect, PM will never be questioned by Lokpal. Section 10 contains a proviso which says “Provided that Lokpal shall not inquire into any matter involved in, arising from or in connection with, any such allegation of corruption against Prime Minister in so far as it relate to national security, maintenance of public order, national defence and foreign relations”. Almost every allegation of corruption will be obviously related to any one of these spheres and thus this provision effectively keeps Prime Minister out of Lokpal’s jurisdiction. Even with regard to any allegation that could be interpreted as not related to above four areas, the competent authority to sanction and refer the allegation to Lokpal is the House of the People. This means the LokSabha has to recommend the Lokpal to take up an inquiry into allegations of corruption against PM. It is impossible as the LokSabha decides issues based on majority and not with judicious application of mind. Regarding allegations against ministers, it is the PM, and for MPs it is the concerned House that has to recommend inquiry, which is not likely. Even the President’s office is kept out of jurisdiction of Lokpal (section 11).
Further, Lokpal for Central Government ministries and Lokayukth for state departments can hope of curbing corruption only when they are empowered to direct CBI and ACB respectively toinvestigate. Creating another recommendatory body as provided would serve as an allurement to sitting judges as post-retirement rehabilitation.
The priority is removing the procedural obstacle of ‘prior sanction’ by ‘competent authority’ and introducing the legal provisions of immediate attachment of property of corrupt public servants (both political and bureaucratic) without waiting for final confirmation of conviction by apex court which might happen only after couple of decades. Without these reforms, the Lokpal Bill, however strong it might be, would not succeed in curbing the corruption. One Lokpal for entire country even with ten Lokpal members, and one Lokayuktha for a state, will not be in a position to cope up with increasing number of financial scams and centralize the process. Anti corruption legal process has to be decentralized. It is also not a good practice to create special classes of law for the political criminals, instead of using main stream law to prosecute them. The rulers should mind ‘rule of law’ as an important component of constitutionalism and criminal justice.
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