Power equations

As regards the composition of the Lokpal, there is little justification for restricting the appointment to judges. Nor would it be wise to make the area of eligibility too wide, as has been suggested by the group associated with Anna Hazare. The soundest course to follow would be to open the field of selection to retired judges of the Supreme Court

and retired chief justices of the high courts, retired constitutional authorities, such as Comptroller and Auditor General, Chief Election Commissioner and chairman of the Union Public Service Commission and retired civil servants and educationists of eminence who have not been connected with politics or business for the last 10 years.
The Screening Committee for selection of the Lokpal can also be one which can inspire confidence in the public. It should neither be too big, as suggest by the Anna Hazare group, nor should it be dominated by political elements, as provided in the legislation proposed by government.
The legislation proposed by the government denies suo moto power to Lokpal to take cognisance of complaints against a “public functionary”. This denial, coupled with the restriction of complaints being received only through the Speaker of the Lok Sabha and chairman of the Rajya Sabha, would make the Lokpal an imbecile institution. It would not command public respect and severely undermine the very objective of the proposed legislation.
But conferment of suo moto powers on the Lokpal without any restriction, as demanded by the Anna Hazare group, would have its own disadvantages. This could, besides harassment, cause serious impediments in the smooth and speedy functioning of the governance machinery at the highest level. The dilemma could, perhaps, best be resolved by empowering Lokpal to take suo moto action and at the same time making a provision in the law to ensure that this power would be used in exceptional circumstances and only after a showcause notice has been given to the “public functionary” concerned, his reply considered and a “speaking order” passed.
In the legislation proposed by the government, the judiciary has been kept out of the purview of the Lokpal. Its problems of accountability are proposed to be tackled separately. But a section of the Anna Hazare group is demanding that judges’ alleged acts of corruption should fall within the jurisdiction of the Lokpal. This demand is not at all justified. Apart from being unconstitutional and destructive of the judiciary’s independence, it would make the Lokpal a virtual dictator. In fact, every finding of the Lokpal should be made appealable to the Supreme Court.
The Anna Hazare group has taken a strong exception to the government proposal of awarding punishment of imprisonment of “not less than one year and extendable to three years” to those who are found by the Lokpal to have filed “false and frivolous complaint, with the malafide intention of harassing the public functionary”. Clearly, this provision is draconian and would act as a strong inhibition in approaching the Lokpal. The power of the Lokpal in this respect should, therefore, be limited to imposition of fines, leaving it to the party falsely complained against to file a defamation suit or a criminal case on the basis of Lokpal’s findings.
Another pressing demand of the Anna Hazare group is that the functions of Lokpal should not be limited to “finding facts”. It should be empowered to launch prosecution, and the entire machinery of the Central Bureau of Investigation (CBI) and the Central Vigilance Commission should also be placed under its charge. The group also wants that the ambit of the Lokpal should extend to civil servants.
All this, it is easy to see, would make the Lokpal an unwieldy institution. It would also become a super-investigator and a super-prosecutor with regard to the alleged misconduct of almost all the important functionaries in the arenas of the Legislative and the Executive. Too much power would get concentrated in one institution, and there is every danger of it being turned into a Court of Star Chamber.
The change that needs to be made in the proposed legislation is to empower the Lokpal to inquire into the conduct of civil servant if it is connected with the conduct of a “public functionary” under inquiry. Neither the CBI nor the Central Vigilance Commission need to be placed under administrative control of the Lokpal. But the course of investigations and prosecutions, launched as a consequence of Lokpal’s findings, could be monitored by it, as is being done by the Supreme Court in the case of 2G spectrum scam.
The above suggestions, I have little doubt, would create a balanced law on the Lokpal. But what will matter in the end is the social and moral climate of the country. Unfortunately, it is this pivotal issue that has been totally ignored, since Independence, by the Indian state and society. That is why, despite civil society groups’ humming and hawing, legislatures passing several laws and the judiciary’s frequent angry outbursts, the caravan of corruption has gone on, daily swelling its ranks.

This is the concluding portion of a two-part series

Jagmohan is a former governor of J&K and a former Union minister

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