Get on with Lokpal, without PM

Corruption in public offices is an ancient and chronic evil recognised as such by repeated legislative measures.
(1) The Indian Penal Code, enacted in 1860, had an entire chapter on bribery.

(2) The Special Police Force of 1943, set up under the War Department for the purpose of investigating offences of bribery and corruption, was continued as the Delhi Special Police Establishment, and thus the Central Bureau of Investigation (CBI) came into existence, to probe corruption cases.

(3)To stem the anticipated menace of corruption, Prevention of Corruption Act, 1947, was enacted, later replaced by the 1988 Act of the same name but with awesome provisions.

(4) In addition, the Central Vigilance Commission was established — initially through a Cabinet Resolution in 1964, and later by a Parliamentary enactment of 2003 — to exercise power of superintendence over the CBI and to inquire into or undertake investigation on a reference made by the Central government, about a public servant’s conduct.

Investigating a crime, prosecuting the accused and punishing the guilty is what these laws aim at — they do not venture into preventing the crime; that is left to the policymakers. And as it stands, every person in the service or pay of the government — including the Prime Minister — is a public servant; but investigating their conduct and prosecuting them needs prior sanction from the bosses. At any given time, thousands of requests for sanction are pending, and investigations stalled.
The combined failure of all — the investigating agencies, the government and an archaic criminal justice system where the accused has only to create a doubt through hostile witnesses or tampered evidence and the like to get acquitted — has taken the country to a level we do not deserve. The exasperated Anna Hazare’s fast hastened the process of making a new law.
Anna’s Lokpal Bill, June 21 edition, appears trimmer as compared to the April version. It aims at replacing all the failed agencies with an 11-member Lokpal and through it to implement the Prevention of Corruption Act of 1988; the bill seeks to make the Lokpal fully in charge of investigation, prosecution and adjudication. Anna’s bill proposes to dispense with the need for prior sanction for investigating and prosecuting the Prime Minister, ministers, judges of the higher judiciary and members of Parliament. Clause 17 of the bill envisages a seven-member Lokpal Bench to permit such investigations or prosecutions.
In effect, if Anna’s bill becomes law, the Lokayukta will be the sole authority to deal with complaints or even rumours of corruption against the lowest and the highest; only the President of India will be outside its ambit.
The joint meeting of all political parties, including the Dravida Munnetra Kazhagam, in one voice, demanded a powerful Lokpal — good to hear that there is so much of support for fighting corruption. However, no one apparently was in support of Anna’s bill — nor did they promise to support the ministers’ bill. All political parties appear to have taken the view that the government should come out with a bill and Parliament, through the process of discussions and amendments, enact a law.
Anna’s draft envisages a Lokpal with complete autonomy and the power to make its own budget. In other words, the Lokpal of Anna will be the most powerful body in India, subject only to the limited, after-the-event jurisdiction of the Supreme Court and high courts whose judges, however, are sought to be within the jurisdiction of the Lokpal. Anna would surely know that the cause of corruption is power; and that, as the saying goes, power corrupts; absolute power corrupts absolutely.
In contrast, the ministers’ bill restricts the jurisdiction of the Lokpal to “public servants” as defined in clause 17 of the draft. The Prime Minister and judges of the higher judiciary are outside the jurisdiction of the Lokpal. All ministers, both present and past, MPs, Group “A” officers in service and chairmen of public sector undertakings and the like fall within the Lokpal’s purview and the bill has done away with the requirement of prior sanction for investigation and prosecutions as far as Lokpal proceedings are concerned.
Restricting Lokpal’s jurisdiction to the higher class of public servants is a very sensible move; it will make the Lokpal more effective. Further clause 17 of Anna’s bill, which provides for a pre-investigation hearing by the Lokpal itself in the case of the ministers, judges and MPs, may be prescribed as standard procedure in all cases.
Whether the Prime Minister should be within the Lokpal’s jurisdiction or not cannot be answered on the basis of opinion polls. It is a matter of Constitutional principle, security concerns and practical perceptions. Two equally patriotic men of law and letters may disagree on this issue. In fact, the National Commission set up in 2000 to review the working of the Constitution, under the chairmanship of Chief Justice M.N. Venkatachaliah, considered this question and concluded: “The commission has carefully examined the point relating to the inclusion of the Prime Minister within the jurisdiction of Lokpal. In the parliamentary system, the Prime Minister occupies a unique position. He is the kingpin of the entire governmental structure. It is his personality, his image and his leadership that drives the government and, indeed, other major institutions of the state. Major threats of destabilisation and subversion of democratic governments cannot be ignored. In this context, the Prime Minister as the symbol of the stability and continuity of the regime, should not be exposed to the risks of well-orchestrated and well-planned attempts to malign his image and reputation on which the entire functioning of the government depends. The entire structure can be undermined by malicious character assassination. The commission recommends that the Constitution should provide for appointment of Lokpal. It also recommends that the Prime Minister should be kept out of the purview of the Lokpal”.
For the time being let us adopt this view — if and when we are convinced that unless the Prime Minister is brought within the Lokpal’s jurisdiction the whole Lokpal mission would collapse, the law can be changed.

The author is a senior advocate of the Supreme Court and former additional solicitor-general of India