M R Madhavan and Kaushiki Sanyal
The agitation led by Anna Hazare against corruption touched a chord with large sections of the population. On April 8, 2011, the government finally acceded to the demand of Shri Hazare to form a joint committee to draft a Lok Pal Bill. The committee includes five nominees from the government and five nominees of Shri Anna Hazare and is scheduled to draft the Bill by June 30, 2011.
The basic idea of the institution of Lok Pal was borrowed from the concept of Ombudsman in countries such as Finland, Norway, Denmark, Sweden, U.K. and New Zealand. In India, the idea was first mooted in 1963 during a debate on Demands for Grants for the Law Ministry. In 1966, the First Administrative Reforms Commission (ARC) proposed a Bill to establish the office of the Lok Pal. Subsequently, the Lok Pal Bill was first introduced in 1968 but it lapsed with the dissolution of the Lok Sabha. It was introduced seven more times in Parliament, the last time in 2001. However, the Bill lapsed each time except in 1985 when it was withdrawn.
The main issues that need to be considered in a Lok Pal Bill are related to the jurisdiction of the Lok Pal, the composition and manner of appointment and the powers vested in the body.
One major issue is to decide who should fall within the ambit of the Lok Pal. In particular, whether the Prime Minister, Ministers, and Members of Parliament should be within its purview as they are already accountable to Parliament. Moreover, whether the judiciary should be excluded from the Lokpal’s ambit to protect its independence and autonomy.
The First ARC of 1966 recommended that Ministers be included within the jurisdiction of the Lok Pal (along with government servants). The National Commission to Review the Working of the Constitution (known as the Venkatachaliah Commission) of 2002 suggested that Members of Parliament should be prosecuted for the offence of giving or receiving bribes. The Second ARC of 2007 stated that Ministers, Chief Ministers and Members of Parliament should be within the Lok Pal’s purview. However, the committees did not favour inclusion of the office of the Prime Minister. The 1996, 1998 and 2001 Bill covered Prime Minister and MPs. The Standing Committee that examined the 1998 Bill stated that allowing the Lok Pal to have disciplinary authority over Members of Parliament may affect the supremacy of Parliament. However, the Standing Committee examining the 2001 Bill accepted that the Prime Minister and MPs should be included in the Bill. It further recommended that a separate legislation be enacted to ensure accountability of the judiciary.
Composition and appointment of Lok Pal
Another major issue is the composition of the Lok Pal and the mode of its appointment. The First ARC did not specify any qualification of a Lok Pal except to state that it should be a body which shall have the same stature as the Chief Justice of India and can be removed only by impeachment. On the mode of appointment, it suggested that the Lok Pal should be appointed by the President on the advice of the Prime Minister who shall consult the Chief Justice of India and the Leader of the Opposition.
Both the Venkatachaliah Commission and the Second ARC recommended that the Lok Pal should be a constitutional authority. The Venkatachaliah Commission did not have any objection to all members of the Lok Pal being from the judiciary as proposed in the 2001 Lok Pal Bill. However, the Second ARC stated that the office of the Lok Pal should be a three member body consisting of a serving or retired Judge of the Supreme Court as the Chairperson, an eminent jurist as Member and the Central Vigilance Commissioner as the ex-officio Member. They should be selected by a Committee consisting of the Vice President, the Prime Minister, the Leader of the Opposition, the Speaker of the Lok Sabha and the Chief Justice of India.
Powers of the Lok Pal
There are three major issues to consider. First, whether the Lok Pal should be a recommendatory body or should have the power to prosecute. The Second ARC recommends that the Lok Pal should be empowered to supervise the prosecution of corruption related cases.
Second, whether there should be the need to obtain prior sanction before a public official can be prosecuted. This provision was designed to protect honest officials from harassment but it has been misused to delay responses to requests for sanction. The Second ARC has recommended that prior sanction need not be required in case where a public servant has been “trapped red handed or in cases of possessing assets disproportionate to their known sources of income.”
Third, the Prevention of Corruption Act, 1988 does not explicitly mention who shall be the sanctioning authority in case of political functionaries (MPs, Ministers and the Prime Minister). The Second ARC suggests that the presiding officer of the respective House should be the sanctioning authority in case of MPs.
Other issues that have been flagged by experts include the power of the Lok Pal to inquire into a complaint on its own or only on the basis of a written complaint and the time limit for investigation.
Next Steps and Conclusions
Public anger and street power have forced the government to form a drafting committee. It is now important that citizens engage constructively in the process of formulating the Lok Pal Bill by giving suggestions and feedback to the Committee. After the Bill is introduced in Parliament, the standing committee and each House must deliberate on the various policy choices in order to create a robust and accountable institution that tackles corruption. It would also be timely to examine the various anti-corruption laws and make suitable amendments (such as mandating a time limit for giving sanctions for prosecution).
The Lok Pal Bill and related suggestions are steps to prosecute persons after an act of corruption. It is equally important to understand the larger context that breeds corruption, and take appropriate steps to reduce the opportunity for bribe taking. To use a cliché, monopoly combined with discretionary power lead to corrupt behaviour. Increasing competition lowers corruption; Indians who lived through the 1970s and the 1980s would remember the ‘premium’ for telephone connections and two-wheelers. And, wherever the government has the monopoly power – such as granting licences to use natural resources – transparent non-discretionary rules can reduce the scope for misuse of this power. Given another cliché – prevention is better than cure – policymakers and parliament, as well as the general citizenry must ask for reforms that reduce the opportunities for corrupt behaviour.