How the Government Lokpal Bill Falls Far Short
The Government has tabled a weak and ineffective Bill at a time when it is beleaguered by scam after scam and with an ongoing movement against corruption, in an act of arrogance and insensitivity. Perhaps it thought that its numbers in Parliament could push it through, just as it intends to push through banking and other reforms, which the Left did not allow in UPA-I.
The Government Draft is wholly inadequate to tackle the new type of corruption under crony capitalism where there is misuse of powers by senior Ministers and bureaucrats for considerable private gain on the one hand and mega profits for the most important domestic and foreign corporate houses on the other. It ignores the current mode of accumulation where loot of public resources (financial and natural) and dispossession of primary producers is the foundation for super-profits. Nor has it moved on the enactment of concomitants like a better version of the Judicial Standards and Accountability Bill, 2010 and Justice B. P. Jeevan Reddy's recommendation of a new clause in Article 105 that "Nothing shall bar the prosecution of a Member of Parliament, in any court of law, for an offence involving receiving or accepting, whether directly or indirectly, and whether for his own benefit or for the benefit of any other person in whom he is interested, any kind of monetary or other valuable consideration for voting in a particular manner or for not voting, as the case may be, in a House of Parliament". These would help address the problem of corruption by an independent National Judicial Commission and corruption in MP's parliamentary conduct.
The Government Bill has the following weaknesses many of which have been highlighted by the CPI(M) in its Note and in the debate in Parliament.
The definition of corruption is itself faulty. Corruption involves a whole range of activities from bribery, influence peddling, patronage or favour, nepotism, cronyism, electoral fraud, embezzlement, kickbacks to officials' involvement in organized crime. Therefore, an all-encompassing definition is a challenging task. The Government Lokpal Bill adopts the definition in the Prevention Of Corruption Act, 1988. This requires the abuse of public power or position through bribery or favor for personal advantage. This linkage between misuse of public power for private gain or enrichment is a highly restrictive understanding of corruption. In many cases, power is misused to benefit an entity like a private company which is not a "person" as required under the Prevention of Corruption Act 1988. Often, there may be no traceable kickbacks or embezzlement but there may be a huge loss to the public exchequer and breach of public trust for example through sale of PSUs due to a willful misuse of power. The definition has to be widened to include "willfully giving any undue benefit to any person or entity; obtaining any undue benefit from any public servant; causing loss to the public exchequer and betraying public trust".
The Selection Committee is far too unwieldy and heavily tipped in favour of the Government. The criteria of selection too are likely to result in the Lokpal becoming a post-retirement reemployment for bureaucrats. The Committee should not have a majority of Government members as this will undermine the selection of an independent body, and could comprise the Prime Minister, the Leader of Opposition in the House of the People, the Leader of Opposition in the Council of States and one sitting Judge of the Supreme Court to be nominated by the Chief Justice of India.
Its jurisdiction or definition of public servants is flawed both in terms of who it includes and who it excludes. While in the case of NGOs it has a far wider definition than the Prevention of Corruption Act, the definition of public servants is far narrower, excluding the highest office and the lowest, the former the fountainhead and the lower the interface. This Government is unwilling to ensure accountability of the highest executive office by removing a serving PM from the purview and only permitting complaints after demitting office. In fact a Parliamentary Standing Committee headed by Shri Pranab Mukherjee had argued for the PM's inclusion while examining the 2001 Lokpal Bill.
The Government's proposal to restrict it only to Group a officers is incomplete, esp. as the people interface with the lower bureaucracy in their day-to-day encounter with graft and corruption. Furthermore, there is collusion from top to bottom and it is often difficult to establish corruption without seeing events and persons in the entire chain of events. All Government functionaries of the Union Government covered under the Prevention of Corruption Act, which includes the Prime Minister, must also be covered by the Lokpal, for the lower bureaucracy through oversight by Lokpal over strengthened vigilance institutions and as a place of appeal if the vigilance institutions fail.
There is the related issue of citizens' charter or the entitlements of the people to public services. There is gross negligence and huge delays in provisioning, and there is a demand that this be treated as deemed corruption. This is not a very sound principle and negligence or delay should be separated from corruption. For this a Grievance Redressal Bill or a Right to Public Services Bill should be brought alongside the Lokpal Bill and Lokayuktas should be instituted in all states to address corruption of the state's public servants (including the Chief Minister) through the enactment of a model legislation as was done twice in the eight previous versions.
The reluctance to include all public servants is accompanied by an over-enthusiasm to cover all NGOs and public-spirited associations. Associations or voluntary organizations, which are not receiving or have ever received any financial assistance from the Central Government or any State Government, have been included in the definition of Public Servants. This is ominous and could lead to harassment of organizations not to the liking of the powers that be. Furthermore, the two provisos to this section exempt the PM if he holds such an office, and exempt all religious trusts from coverage by the Lokpal. So, the Government Bill brings all political and voluntary organization under the Lokpal while exempting religious bodies. These provisos are perverse and should be dropped. Only NGOs association receiving any public funds from the Government exchequer should be brought under the purview of the Lokpal in the case of the Union Government and Lokayuktas in the case of State Governments.
The Government bill completely ignores the politician-Public servant-Corporate nexus by not including the corporate sector in either the definition of corruption or the jurisdiction of the Lokpal. Jan Lokpal empowers the Lokpal to "to recommend cancellation or modification of a lease, license, permission, contract or agreement, if it was obtained by corrupt means and to recommend blacklisting". It also provides that "If the beneficiary of an offense is a business entity, in addition to the other punishments provided for under this Act and under the Prevention of Corruption Act, a fine of up to five times the loss caused to the public shall be recovered… from the assets of the business entity and from the personal assets of its Managing Directors, if the assets of the accused person are inadequate." It also requires all contracts, agreements or MOUs related to transfer of natural resources, including land and mines to any private entity by any method by any public authority shall be put on the website within a week of being signed. These and other measures that equip the Lokpal to fight the nexus must be included in the Bill in the definition of corruption and by extending jurisdiction to "any other person or entity" who is involved.
The Lokpal is a toothless body, which does not have a clear mandate about actions after an inquiry. The powers are discretionary and essentially recommendatory and are not binding in any way. In the case of all public servants except MPs and Ministers, where the Lokpal finds commission of an offence the Lokpal may act and In the case of Ministers and MPs, the Lokpal may file a case and shall send a copy of the report and findings to the competent authority. This is completely meaningless and the guilty may get away scot-free since it is back to their own departments handling the action. In all cases when it finds commission of an offence by any public servant, the Lokpal, depending on the seriousness of the offence, must file a case in the Special Court and send a copy of the report together with its findings to the competent authority and/or recommend the initiation of disciplinary proceedings; and the competent authority Lokpal must send a Report within six months to the Lokpal. In case the Lokpal finds the Action by the competent authority to be inadequate, it must have the powers to recommend further action, which can only be overruled by giving reasons in writing within two months.
Lokpal does not have suo moto powers to take cognizance of an offence and can only act on receipt of a complaint. This is an extremely narrow understanding of how an anti-corruption body should function. The Lokpal must have suo moto powers to take cognizance, investigate, recommend action and initiate trial.
Even as the Government creates a weak Lokpal, it is shockingly accommodative towards the public servants against whom allegations are raised even as it is very tough on penalties for the complainants. "The Lokpal shall afford the public servant an opportunity of being heard" four times - before concluding that there is a prima facie case, after the investigation, during inquiry, before filing the charge sheet. Clearly the accused will be given an opportunity of being heard at the trial stage. This is not provided under any other criminal procedure and should be deleted as a statutory right. In an unprecedented move, every accused person even at the preliminary stage is "entitled to inspect any record in connection with the commission of any alleged offence and take an extract therefrom, as is considered necessary to defend his case." Why should those charged with corruption have the statutory right to force the Lokpal to reveal its evidence and compromise its witnesses before the trial stage? This is a highly dangerous provision and must be dropped. Similarly, the Lokpal is bound to provide legal aid to all accused who asked for it. Which Group a officer cannot afford legal aid? Why should they cause a further outflow of public funds? Ideally this clause should be dropped but there could be an income limit for accessing this legal aid, which should be Rs. 75,000 per annum.
There is a serious undermining of autonomy and independence of the Lokpal since only Government can seek removal of Lokpal and all powers to receive and refer complaints to the Supreme Court are vested in the President. How will it function independently and fearlessly against the senior-most functionaries of the Government whom it is supposed to investigate? There is also a clear conflict of interest since the Lokpal is itself fully and solely responsible for investigating and prosecuting when there are complaints of corruption against its staff. These powers to receive complaints and investigate them should lie with the Supreme Court in the Case of the Members and Chairperson and with all High Courts in the case of other Lokpal staff.
By far the most counter-productive, are the extreme and draconian provisions against "false, frivolous, vexatious" complaints, which include 2 to 5 years imprisonment and Rs. 50,000 to Rs. 2 lakhs fine, along with compensation and legal fee to the accused Government servant! If an association or society is guilty of such a complaint, all members will be deemed to be guilty. This is clearly unacceptable and would act as a huge disincentive for those raising complaints against powerful people. These Clauses must be deleted. On the contrary, whistleblowers should be protected. The Government must strengthen the Bill titled Public Interest Disclosure (Protection of Information) Bill, 2010, it has tabled in Parliament and present it for passage.
Thus, the Government Bill is a contradiction in terms as it is too weak to fight corruption in terms of jurisdiction, powers and procedures and it is very strong in providing loopholes to the corrupt and powerful. Even as it penalizes the complainant and offers no protection to whistleblowers, it leaves disciplinary action to the same structures that have failed to deliver thus far. It gives no oversight and monitoring role to the Lokpal after it has established the commission of an offence. It fails to recognize and address the corporate - bureaucracy - politician nexus in the high corruption that is filling the overflowing coffers of the corporate sector by completely ignoring the corporate sector and loss to public exchequer. It is therefore essential that this bill be withdrawn and a new one brought along the lines discussed above. There is a limit to the patience of a people suffering from corruption.
[Smita Gupta is Senior Fellow of Institute for Human Development]