Jan Lok Pal: unconstitutional, unnecessary
The battle against corruption must be fought by strengthening existing instruments
The debate on how to eradicate corruption, kick-started by Anna Hazare’s indefinite fast, has now moved into its second phase. This involves the drafting of a bill that will provide a foolproof mechanism to bring the corrupt to book. Here is an examination of the structural flaws inherent in the Jan Lok Pal Bill
The bill, also known as The Anti Corruption, Grievance Redressal and Whistleblower Protection Act, 2010 (which will be referred to as the Jan Lok Pal Bill) is about the most overwhelming piece of legislation since Independence.
Why the big fuss, you may ask. Don’t we have any laws against corruption in India? Well, of course, we do. Taking of illegal gratification by public servants was made a criminal offence way back in 1860 by the repository of all that’s evil—the Indian Penal Code, in Sections 161-165A.
The Prevention of Corruption Act was first enacted in 1947. In fact, when the Delhi Special Police Establishment Act, 1946 (the parent statute of the Central Bureau of Investigation) was enacted, it was primarily to investigate allegations of corruption against central government employees.
A “new and improved” Prevention of Corruption Act (PoCA) was enacted in 1987, complete with special courts and tougher punishments, and with it, the relevant sections of the Indian Penal Code stood repealed.
The new Prevention of Corruption Act is not without controversy, and the Supreme Court usually has to consider who a “public servant” is every other month. However, the main issue with the PoCA is that while it targets employees of nationalised banks, lower level policemen and similar other members of the government food chain, the higher-ups just never manage to face the heat, and even if they do, it takes years for cases to see the light of day.
And all we really want is to see the corrupt thieves in jail, or at least, not in any position of power. Why is it so difficult to just throw out corrupt unmentionables? For that, we need to go back to the hallowed Constitution of India. Article 311 is the party pooper, which requires that a civil servant can only be dismissed by an authority equal or superior to that which appointed it. That at least is at the stage of dismissal. Even for prosecution, the PoCA requires previous sanction, according to Section 19.
Section 197 of the Code of Criminal Procedure, follows suit for offences committed “in the discharge of official duty”. Obviously, the public perception is that government officials will always refuse to accord sanction to protect their minions, perhaps rightly so.
Keeping this in mind, the government proposed the Lok Pal Bill, 2010, as a mechanism for inquiry into allegations of corruption against public functionaries. As a response, several public-spirited citizens countered with their own draft Jan Lok Pal Bill. The latter is so much broader in scope compared to the government’s draft that it is not even fair to compare the two. The activist’s Jan Lokpal Bill, version 2.1 doesn’t just stop at inquiry. It goes the whole hog.
It says that the Lok Pal shall consist of one chairperson along with 10 members. These persons should not, at the time of appointment, be holding any “office of profit” or be a member of parliament or the legislature of any state. It also bars persons who have even been charged (not convicted!) under the IPC or PoCA or penalised under the Central Civil Services Conduct rules.
Out of these 10 members, four must have some “legal background”, bringing in former judges and lawyers. A maximum of two of these members can come from a civil services background. Looks like a healthy mix. So far, so good.
Then there is this requirement: “The members and Chairperson should have unimpeachable integrity and should have demonstrated their resolve to fight corruption in the past.”
This is jarring for two reasons: one, it looks like the bill is leaving a lot of scope for canvassing for these posts, and two, isn’t impartiality a much more important consideration? The objective of the Lok Pal ought to be to conduct an honest and fair inquiry. Anyone who has demonstrated their resolve to fight corruption in the past might end up being a trigger-happy vigilante in judicial robes (and police uniform—but we’ll get to that later), especially when empowered in such a manner.
The cream of the crop, including the chairperson of the National Human Rights Commission (oh, the irony!) are involved in the selection process. In fact, a previous version (1.9, apparently) proposed former Magsaysay award winners and Nobel laureates “of Indian origin” to be members of this selection committee. The good news is that they have been shoved aside to accommodate “retired army personnel who are five star generals”. It is unclear if they asked the 92-year-old Marshal of the Air Force, Arjan Singh, before adding this post to the list, considering he’s the only living five star general we have.
Any person can propose the name of a deserving candidate to be appointed to the Lok Pal, and after initial sifting by the selection committee, the person recommending a candidate has to provide material to support his nomination. Thereafter, the names will be put up on the Internet to solicit public feedback, and the committee can also use “any means” to collect more information about the background and past achievements of the shortlisted candidates. Lok Pal members are appointed by the President of India.
So despite all of this, if a member is found being less-than-unimpeachable, the Supreme Court of India—yes, the highly overburdened final court of appeal and protector of the Constitution—in a bench of five judges, no less (normally known as a “constitutional bench”), will have to conduct the inquiry.
However absurd an allegation, the Act specifically bars the Supreme Court from dismissing the petition at the threshold stage. The Supreme Court can order a report of “investigation” by a Special Investigation Team and can bench the allegedly errant member while such inquiry is being conducted. If someone makes a false complaint, they can be punished with fine and imprisonment.
There is, however, no appeal for a member who may have been wrongly dismissed. Neither is there is any discretion left with either the Prime Minister or the President of India to withhold the person’s removal. So, the President can refuse to sign bills passed by both houses of Parliament, refuse to sign orders of impeachment of Supreme Court judges, commute a sentence of death which could have been upheld by four different courts (including two benches of the Supreme Court in appeal and review), but she must remove a member of the Lok Pal on the recommendation of the Supreme Court.
Moving on. What does this wonderfully constituted Committee get to do, anyway?
According to the Bill, the Lok Pal shall be responsible for receiving complaints for offences under the PoCA, or for “misconduct” which includes “vigilance angle” which in turn includes the very carefully worded “Gross or willful negligence; recklessness in decision making; blatant violations of systems and procedures; exercise of discretion in excess where no ostensible/public interest is evident; failure to keep the controlling authority/superiors informed in time”.
Presently, complaints for offences under the PoCA go to the anti-corruption wings of either the CBI or the local police. The police investigate, and present their findings to a government authority for sanction. The government authority is supposed to independently apply their mind and accord sanction if a case has been made out. The case is then tried before a special court. The procedure for complaints under the PoCA now is that the Lok Pal will order an inquiry or investigation, and only when the Lok Pal is satisfied that a case is made out, will it direct that prosecution be launched. The procedure for obtaining sanction prior to prosecution is eliminated, once the Lok Pal orders investigation it is deemed that sanction is accorded.
The branch of the CBI that deals with investigation and prosecution of offences alleged to have been committed under the PoCA, will now be the “Lok Pal Investigation Wing” and be under the direction and control of the Lok Pal.
To start with, it crosses the line when it comes to the separation of powers. Each wing of Government—the Legislature, Executive and Judiciary—keeps checks and balances on the other, and so they must remain separate, because that’s the only way to ensure that there is no abuse of power. Here, the Lok Pal, which is a judicial body, for all practical purposes, will have control of the part of the Executive that conducts investigations on its behalf. To add to more confusion, the chairperson, members of Lok Pal and the officers in investigation wing of Lok Pal are to be deemed to be “police officers” as defined under the Code of Criminal Procedure, for the purpose of carrying out investigation.
When a complaint comes before the Lok Pal Committee, they can either initiate investigation straight away, or conduct a preliminary inquiry. Interestingly, the Lok Pal can also direct any other person to make this preliminary inquiry as it deems fit for ascertaining whether there exists a reasonable ground for conducting the investigation.
An aside here—the whole wording of this bill can get kind of confusing, because, for example, in criminal law, “Inquiry” is usually meant for a stage prior to the filing of an FIR, and Investigation denotes that an FIR has been filed. In this Bill, the Lok Pal can, after investigation, order that Prosecution be launched, which means an FIR, after which investigation has to be carried out. Again.
While the complainant is mandated to be kept in the loop regarding the inquiry into his complaint at all times, the same is not true for the public servant. In fact, it isn’t very clear when the public servant is allowed to make his representation, which is slightly disturbing considering the possibilities at the end of this inquiry/investigation, which we’ll get to in a bit.
Calling for the say of the public servant at the stage of inquiry is entirely at the discretion of the Lok Pal. At the stage of investigation, thankfully, the Lok Pal “shall afford to such public servant and the complainant an opportunity to offer comments and be heard”. What is the scope of offering comments, though? Does the public servant have the right to legal counsel? It is also very disturbing that there is no provision which prevents the bench of the Lok Pal that conducts the preliminary inquiry from being the one that conducts the investigation, which is a necessary safeguard from a “judge, jury, executioner” situation.
After completion of due investigation, the Lok Pal has several options, including (besides dismissing the complaint) initiating prosecution against public servants as well as abetting private parties, imposing of penalities under the conduct rules, order cancellation or modification of a licence or lease or permission or contract or agreement, or even blacklisting the concerned firm or company or contractor or any other entity involved in that act of corruption.
Pretty harsh punishments, probably what these people who are guilty of corruption-related offences deserve—but wait—this is all prior to having been found guilty by a court of law. Since the inquiry/investigation/what-have-you is in the nature of a civil Inquiry, the standard of proof is very different than of a prosecution under criminal law. Take the example of people who are found guilty in departmental inquiries who often get acquitted by courts in PoCA offences. In criminal law, the standard of proof is beyond reasonable doubt. If this standard of proof is not adhered to, and at this stage which is prior to any independent investigation authority even looking into the matter (the Lok Pal Investigation Wing not really fitting in with the concept of “independent”) the ability to blacklist corporations is absolutely absurd. Another point to ponder—if the Lok Pal decides to “initiate prosecution”, who is the investigating authority then? Is it the Lok Pal Investigation Wing again? God forbid!
That’s not all—even at the stage of inquiry (that is before even concluding their inquiry and referring this case for initiation of prosecution) the Lok Pal can move for interim measures to restrain him or his orders from causing further harm. However, even at the stage of investigation, the Lok Pal can ask for a tabulation and freezing of immovable and movable assets of the public servant. It is not even necessary to show that these assets are disproportionate or reasonably suspected to have been derived from funds which are the subject of inquiry.
The Lok Pal Bill moves further into uncharted territory with the possible prosecution of the “bribe giver”. For years, the position of law as to whether a person could be prosecuted for giving a bribe was unclear. Under PoCA, a statement made by a person in any proceeding against a public servant that he offered or agreed to offer any illegal gratification would not make him liable to face prosecution as an abettor. The purpose behind this was simple—to encourage reporting of offences and ensure convictions. It looks like a person who had to give a bribe may not get this cushion of protection before the Lok Pal.
More absurdity—the act also takes the liberty of amending the Prevention of Corruption Act. Sections 7 – 15 of the Act which have minimum punishments of six months to a year and maximum punishments of 5-7 years are now amended to two years minimum imprisonment and a maximum punishment of life imprisonment. If the accused is an officer of the rank of joint secretary or above or a minister, a member or chairperson of the Lok Pal, the minimum imprisonment is ten years. A fine of five times the “loss caused to the public” will be recovered in case the beneficiary is a “business entity”, and if the assets of the company be not enough to recover the amount, it will have to be recovered from the personal assets of the directors.
Theoretically, this is fine if you have an independent judiciary, again, the hallmark of a democracy. Already, there are special courts constituted to handle matters under the PoCA (the Bombay Sessions Court has four such Courts). The appointment and superintendence of these judges, who are at the level of district judges, should be by the governor of the state in consultation with the High Court exercising jurisdiction in relation to such state, since that’s what the Constitution of India says.
The Lok Pal Bill pays no heed to such niceties, and instead the Government (they probably meant “Governor”) has to take advice from the Lok Pal on the selection procedure of these judges, which one hopes is not that these judges have shown a zeal for rooting out corruption in the past.
Never mind, at least there is a provision for appeal. Or is there? Along with the ignorance of the Doctrine of Separation of Powers, the other big problem with the Lok Pal Bill and which demonises it completely is the utter disregard for the right to appeal. It is not clear, whether a bench of the Lok Pal is to be considered on par with a magistrate (since it conducts inquiry), a court of sessions, a High Court (though it is to be treated so for the purpose of the Contempt of Courts Act), a tribunal or a quasi-judicial body (like the Human Rights Commission).
Regardless of what it fancies itself to be, by the lack of provision for appeal, it is unconstitutional. Granted, the Lok Pal itself doesn’t convict anyone, but that doesn’t mean that there should be no right to appeal. The right to at least one appeal against an order, which affects someone adversely, is inherent in the Constitution. There is no specific clause regarding appeals in the Jan Lok Pal Bill, and that is unconstitutional, to say the least.
The only mention of an Appeal is in Section 28A regarding disposal of “Properties deemed to have been obtained through corrupt means” where appeals against the orders of the Lok Pal shall lie in High Court of appropriate jurisdiction, which shall decide the matter within two months of filing of the appeal.”
Gautam Patel, a lawyer, points out, that according to Section 27 (2), there appears to be a further ousting of the power of the judiciary by barring any proceedings or decision of the Lok Pal from being challenged, reviewed, quashed or called in question in any court of ordinary civil jurisdiction. While in my opinion that doesn’t preclude the interference of the High Court in its extraordinary writ jurisdiction, thus allowing for judicial review, the section is extremely high handed.
The bill is also contradictory and confusing when it comes to inquiries and investigations against various public officials. The big ticket is of course the judiciary. Special provisions exist only as regards judges of a High Court or Supreme Court. All complaints concerning these persons will be subject to a preliminary screening for prima facie evidence—interestingly, judges will only be considered for offences under the PoCA and not for “other” offences and misconduct.
Registration of a case will only be done with the approval of a full bench of the Lok Pal, a majority of the members being from a legal background. Even after registration, such cases shall be investigated by a special team headed by an officer not below the rank of a superintendent of police. This is all well and good, because this makes absolutely no difference to the Judge who is protected by the rigorous impeachment method.
The proposed Jan Lok Pal Bill is a knee-jerk reaction to the present scenario. No doubt, corruption is draining our exchequer as well as our sense of morality and faith in the system. Like most knee-jerk reactions, it is not well thought out, and by taking over the independence of courts and the investigating authorities, leaving no scheme of appeal, and the ambiguous treatment of the right to be heard, the bill is absolutely unconstitutional and should not be implemented at any cost—fast-unto-death or not. The possible implications of its enactment far outweigh the obviously good intentions that it was drafted with.
It is always easy to criticise and walk away without any suggestions. So let me throw in my ideas. Say you remove the unconstitutional and absurd bits from the Jan Lok Pal Bill, what do you have? A legislation that prides itself on transparency in its constitution and functioning and easy accessibility by the public, all of which can and should be strengthened in existing mechanisms. The provisions regarding protection to whistleblowers should extend to all endangered witnesses in general, and should find place in a separate legislation or appropriate amendment to the Criminal Procedure Code.
The purpose of the Lok Pal Bill should be a transparent means of pre-trial evaluation of material against public servants, and providing a more public alternative to the closed door sanctioning process under the PoCA and the Code of Criminal Procedure. Like it or not, the process of sanction is a necessary evil especially when dealing with publicly elected officials. It cannot be the tool of a witch-hunt, and it must respect the boundaries of due process and constitutionality.
When you already have courts and police personnel devoted exclusively to unearthing offences under the PoCA, an act which actually places the burden of proof on the accused, why not expend resources in trying to strengthen these?
By bringing in the spirit of the Jan Lok Pal Bill and improving citizen access to complaint mechanisms, ensuring witness protection, along with a transparent and public process of according sanction for prosecution, there will be a great improvement in the effectiveness of the PoCA, which itself would be a huge deterrent.
A relook at the PoCA and its scope, particularly the inclusion of the private sector, would also not be out of place. Enacting the Jan Lok Pal Bill in its present form, the appointment of the officials and the sure-shot constitutional challenges it will face will be a waste of time, energies and effort. Let’s get to work with what we have.
Amba Salelkar is a lawyer practising in Mumbai. The views expressed in this piece are her own. This is an edited version of an article that was first published online at Yahoo! India