The Lokpal Bill: A citizen's viewpoint
Posted on April 28, 2011
Bharati Sekhar, a concerned citizen, shares her perspective on the Lokpal Bill while evaluating its visible pros and cons.
The absence of an effective grievance redressal system against public officials undermines the very institutions which are the pillars of a democracy. Currently Indian citizens do not have access to an effective grievance redressal mechanism that disposes of complaints against public officials in a time- bound manner. Public servants (such as government employees, judges, armed forces, police) can be prosecuted for corruption under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. However, the Code of Criminal Procedure and the Act requires that the investigating agency (such as CBI) gets prior sanction of the central or state government before it can initiate the prosecution process in a court (Kaushiki Sanyal, Issue Brief on Lokpal Bill, retrieved on 8.04.2011). The delay in disposal of the case defeats the entire purpose of the complaint.
Thus the need to set up an independent body to look into cases of corruption against public officials was felt. The Lokpal Bill has been introduced seven times since 1963. However it has lapsed on most occasions. The latest draft of the Lokpal Bill has been criticized on the following counts:
i) The general public cannot file complaints with the Lokpal directly. Complaints can only be sent to the Speaker of the Lok Sabha or the Chairperson of the Rajya Sabha, who in turn would forward it to the Lokpal. The Lokpal will not have the power to take suo moto action against public officials. ii) The Lokpal is merely an advisory body and has no power to sanction prosecution of guilty officials. The enquiry report will be forwarded to the competent authority which will take action against them. iii) Composition of the Lokpal: Only three members who are retired judges of the Supreme Court. It does not have members from other backgrounds. iv) Punishment to complainants in the form of heavy penalty, for false and frivolous complaints. v) The Prime Minister is outside the purview of the Lokpal in key sectors like defense and foreign affairs.
Due to the major shortcomings in the draft of the Lokpal Bill, members of various Civil Society Groups drafted the Jan Lokpal Bill as an alternative to the Lokpal Bill. Some of the major features of the bill are as follows:
i) The general public can file complaints against public officials before the Lokpal, and the Lokpal has the power to take suo moto action against public officials. ii) It can initiate both disciplinary proceedings and criminal proceedings after completing an enquiry. It will have police powers to lodge an FIR and undertake investigation. iii) The Lokpal consists of ten members, at least four of whom should have a legal background. Selection will be through an open procedure and feedback of the public on shortlisted candidates will be considered. iv) Complaints will be addressed in a time-bound manner. The investigation will be completed within a year and the trail will be completed within one year.
Analysis of the Jan Lokpal Bill The Jan Lokpal Bill has some strong provisions which would help the Lokpal become a strong independent institution for tackling corruption. However the Bill might face certain constitutional, as well as practical hurdles:
i) The Bill seeks to repeal the Central Vigilance Commission Act and merge it with the Lokpal (section 24). It also seeks to merge the part of Delhi Special Police Establishment that is involved in investigations into the Lokpal. The legal sanctity of such a move needs to be considered more carefully. Entrusting both investigating and prosecuting functions to a single authority defeats certain fundamental tenets of Administrative Law. Investigation and prosecuting functions need to be independent of each other. A single authority to carry out these two functions might result in both the arms compromising their independence. ii) The bill provides that no complaint can be dismissed without hearing the complainant (s. 15(4). In view of the huge backlog of cases in the judiciary, it becomes necessary to have a system to determine the admissibility of the complaint. The Lokpal might not have the time and resources to hear every complainant. Pendency of complaints might defeat the very purpose of the Institution. Currently the Information Commissions in many states have a huge backlog of appeals and this threatens to defeat the very purpose of the RTI Act. Therefore it becomes important to ensure that the Lokpal has adequate physical and human resources to manage the complaints that come before it and set certain minimum standards to determine the admissibility of complaints. iii) Suitable amendments might be needed in the Constitution to give powers to an extra Constitutional authority to oversee complaints against the Executive, Legislative and Judiciary which derive their authority from the Constitution. Since the Bill gives sweeping powers to the Lokpal over the three organs of our democracy, it alters certain fundamental features of the distribution of powers envisaged in the Constitution. This aspect needs further consideration.
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