Checks & balances

The attempt to establish the institution of Lokpal commenced long ago on the recommendation of the Administrative Reform Commission. The Lokpal and Lokayukta Bill, 1968, was introduced in the fourth Lok Sabha and since then there have been eight attempts to secure Parliament’s approval. At the initial stage, the main objective of bill was to deal with the “problem of redress of citizens’ grievances”.

But 1977 onwards, the focus of the legislation shifted to elimination of “corruption at high places”. The need of the hour is to subject the various complexities involved in different proposals to cool consideration and frame a a law which meets the objective of curbing corruption in high places without jeopardising other vital concerns of national security, stability and efficient governance. The sound and fury, currently being witnessed in certain quarters, has the potential of pushing the decision makers towards a thorny path — the nation may bleed and the body-politics could incur additional disabilities without substantially curing the malady of corruption in public life.
The seven main principles and provisions of the Lokpal Bill, which have emerged out of the 84th Report of the Parliamentary Standing Committee on Home Affairs (2001) and which, with slight modifications, were under consideration of the government before Mr Hazare launched his agitation for a stronger Lokpal Bill, are:
First, the Lokpal would be a plural body comprising a chairperson and two other members who would enjoy a fixed term. The chairperson would be one “who is or has been a Chief Justice or a judge of the Supreme Court” and the two members would be those “who are or have been judges of the Supreme Court or the chief justices of the high court”. Secondly, appointments of chairperson and other members would be made by the President of India on the recommendations of the Screening Committee consisting of the vice-president of India, as chairman, Prime Minister, speaker of the house of the people, the home minister, leader of the House other than the House in which the Prime Minister is a member of Parliament, the Leader of Opposition in the house of the people and Leader of Opposition in Council of States. Thirdly, neither the chairperson nor the members could be removed from office except by order made by the President on the ground of proved misbehaviour or incapacity. Fourthly, the Lokpal would be empowered to inquire into complaints against a “public functionary” as defined in the Bill has committed an offence punishable under the Prevention of Corruption Act, 1988, and the expression “public functionary” would cover the Prime Minister, the ministers, the ministers of state, the deputy ministers and members of Parliament. Fifthly, the constitutional functionaries, such as judges of the Supreme Court and high courts, the Chief Election Commissioner, election commissioners etc. would not come within the purview of the Lokpal. Sixthly, the complainant who is found to have “filed a false and frivolous complaint, with malafide intention of harassing the public functionary”, could be punished by the Lokpal with imprisonment which “would not be less than one year, but, could extend up to three years”. Seventhly, the Lokpal would be a fact-finding body which would communicate its findings to the competent authority which would be the house of the people in the case of Prime Minster, Prime Minister in the cases of ministers and the House concerned in the case of members of Parliament.
The most significant issue which, in fact, was one of the main reasons for the delay, pertains to the office of the Prime Minister. Should this office be brought within the ambit of the Lokpal? The group led by Mr Hazare insists that the jurisdiction of the Lokpal over the Prime Minister should be all-embracing, while the legislation proposed by the government has excluded matters dealing with national security, defence, foreign affairs and public order.
It has been argued that in the form of government that we have, the Prime Minister is the kingpin of the governmental structure. He has to take many decisions which annoy powerful interests, both internal and external. These interests could manipulate complaints against him to the Lokpal, harass him, lower his standing in public and erode his moral authority to govern. Even the country’s security could be imperilled. There is a substantial force in this argument. But it has also to be kept in mind that power in India has tended to get concentrated in the Prime Minister secretariat. If the Prime Minister or the Prime Minister’s secretariat is left out of the purview of the proposed law, the objective of controlling “corruption upstream” may not be achieved.
It is necessary to exclude from the ambit of the Lokpal certain decisions of the Prime Minister in the arenas of national security and defence. The class and category of such decisions could be spelt out in the proposed law itself. It should also be made incumbent upon the Lokpal to first hold preliminary inquiry, internally and confidentially, and satisfy himself that no foreign hand is involved and the complainant is solely motivated by the desire to keep the public life clean. If stringent safeguards are not provided, hesitancy and procrastination are bound to creep in the decision making process, even in matters concerning vital national interest.
Another key issue relates to the role assigned to the “competent authority”. The proposed legislation lays down that the conclusion drawn by the Lokpal would be communicated to the “competent authority”. In the case of Prime Minister, the “competent authority” is the House of People. The majority of the members in this House would be supporters of the Prime Minister. They could pass a resolution rejecting the conclusions drawn by the Lokpal. Likewise, if the Lokpal records an adverse finding against a Minister and sends it to the Prime Minister, who is the “competent authority” in the case of his ministers, he could take the stand that he does not agree with the views of the Lokpal and would not ask for the minister concerned to resign.
Given the nature of politics that is emerging in the country, it is not unlikely that such cases would occur, giving rise to bitter controversies and deeper political animosities. In the circumstances, the better alternative would be to make the findings of the Lokpal binding on all concerned.

This is the first of a two-part series

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