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Sunday, 8 January 2012

ALL IS NOT LOST The Lokpal Bill can still be salvaged

The bitterness, mistrust and acrimony of the past year must give way to greater harmony,resolve, and mutual respect. The nation’s self-image and self-esteem, people’s confidence in governance and India’s global reputation and investor confidence in the nation are all at stake. It is time to act decisively and swiftly
ALL IS NOT LOST
The Lokpal Bill can still be salvaged
N Jayaprakash Narayan
Even in the best case scenario, it is hard to persuade law makers to accept an ombudsman that will swiftly investigate and ensure punishment for acts of corruption and wrong-doing by those in the political executive, legislature and in the senior bureaucracy.
It requires great resolve, tact, spirit of accommodation, and pragmatic approach.  In this case, all the players – the government, political parties, opposition, and civil society – committed follies.
The government failed to incorporate a few key provisions that would have inspired more confidence in the public; and wherever the Bill had good provisions, it failed to take its alliance partners on board, and also failed to effectively communicate the strong features of the Bill. Therefore its approach was reactive, defensive and delayed.



The parties that opposed the Bill indulged in cynical grandstanding, and allowed the impossible ‘best’ to be the enemy of the possible ‘good’. They allowed red-herrings like “assault on states” to dominate the debate and kill the Bill, and went back on the commitment of the Parliament.
The Civil society, instead of understanding the complexity of the process and showing respect, kept changing the goal posts and acted with unconcealed contempt and hostility. Now is the time for all players to take a deep breath, and spare some time for sober reflection.
The good & the bad
The Lokpal and Lokayuktas Bill before Parliament does have certain deficiencies.  The Ombudsman has no suo motu powers and has no investigative agency of its own. The fetters on CBI( Central Bureau of Investigation) and ACB( Anti Corruption Bureau) still remain in respect of cases not monitored by Lokpal / Lokayukta in the form of prior government clearance for investigation (Section 6A of Delhi Special Police Establishment Act), and prior approval for prosecution (Section 19 of the Prevention of Corruption Act, and Section 197 of the CrPC).
State ACBs remain completely under government control in respect of appointment of director and other officials, and superintendence and guidance.  These weaknesses need to be addressed.  
However, the Bill did propose an extremely strong and independent Ombudsman. Everybody – PM, CM, Ministers, MPs, MLAs, senior officials – was brought within the jurisdiction of the Lokpal/Lokayukta.  Junior officials and employees too are brought under the Lokpal through the CVC.
The CBI director, the Bill provided, will be appointed by a totally bipartisan committee of PM, Leader of Opposition (LOP), and CJI, in which government has only one vote out of three. CBI officials will be appointed by a five member committee of the full CVC and two secretaries to government in consultation with the Director. The CBI and ACB will be accountable to the Lokpal/Lokayukta in respect of all investigations ordered by them.
Prosecution of cases and creation of special courts are within Lokpal/Lokayukta purview. Attachment of properties by Lokpal /Lokayukta, and confiscation by special courts are incorporated in the Bill.  Provisions relating to appointment and removal of Lokpal / Lokayukta ensure their independence. All these and other provisions give real and substantive authority to the Ombudsmen.
The talk of a weak and partisan Lokpal / Lokayukta is a sad reflection of political rhetoric divorced from facts.  In particular, two issues dominated the Parliamentary debate, and derailed the legislation. They pertain to autonomy of the CBI and Constitutionality of the Lokayukta provisions.
The CBI
The director of CBI will be appointed by the committee of PM, LOP and CJI.  This is an extra-ordinary provision, which is not applicable even to the other Constitutional authorities like Election Commission, CAG, UPSC etc.  All officers of the rank of SP and above shall be appointed by the three-member CVC and two secretaries to government, and the five-member committee shall consult the Director on these appointments.
The CVC (Central Vigilance Commission) exercises general superintendence of CBI. In respect of cases referred by the Lokpal, CBI will report to the Lokpal. Similarly, CVC will report to the Lokpal in respect of cases referred to it.  In addition to all these provisions, Section 38 gives extraordinary powers to the Lokpal in respect of corruption allegations against its own officers, and officers and employees of all anti-corruption agencies including CBI and CVC. The Lokpal has powers of suspension, prosecution and disciplinary action against erring officials of all these agencies.
In the face of these provisions, it is churlish to argue that the CBI will be under government control.  The much-talked about administrative control of the government is limited to two issues – budget and cadre control.  Both these must be understood in perspective.
CBI’s real challenge in the future dispensation will not be government control.  It will be capacity-building. There are only 6000 personnel in the CBI with nation-wide jurisdiction. Of these, only about 2000 are investigators. The number of corruption cases registered by CBI is of the order of only 1000 or so every year. Obviously, these are miniscule numbers in the face of a massive national problem.
ACBs suffer even more in terms of inadequate staff, infrastructure and capacity. We need to have a plan and action programme to expand the CBI almost ten-fold over the next ten years, if the agency has to respond to the growing challenges and serve the country effectively.
This should be coupled with adequate infrastructure for surveillance, forensic laboratories, communication and mobility. Similar capacity – enhancement is required in state ACBs. All these require significant budgetary commitments.  While control of budget should remain with Parliament and government, there should be firm commitment to expand the agencies and provide adequate resources to them.
Cadre control
Regarding cadre control, the government’s role cannot be dispensed with, because CBI is largely populated by officials of various other agencies drawn from a variety of sources.  Even the senior IPS officials are drawn from states, because they belong to an All-India Service.
Consequently, several matters of coordination, seniority, encadrement, availability of officials and consent of states and parent agencies can be handled only by the government.  Therefore the argument that CBI, in the new dispensation, has no real autonomy is weak and unsustainable.
Clearly, we have to be cautious in creating a strong, independent investigative agency, lest we create a state within-state, like the ISI across the border, with its own agenda, and accountable to none.
But there is no case to retain Section 6A of DSPE Act, and Section 19 of PCA and Section 197 of CRPC in respect of corruption matters. These sections should be repealed, or amended suitably so that the CBI is not fettered in its work. Prior sanction of prosecution, if still required, can be entrusted to the Lokpal. That will guarantee full autonomy of CBI.
There seem to be two competing approaches on CBI’s superintendence.  Many argue that CBI must be under the single, unified superintendence of the Lokpal, instead of multiple loci of power – CVC for most matters, and Lokpal for matters related to cases referred by it. Government and many parties seem to be concerned about the dangers of a monolithic, unaccountable organisation running amok.
Perhaps one simple way of addressing the concerns of Parliament as well as civil society would be to make all members of CVC ex-officio members of the Lokpal.  The CVC would remain as a separate entity with its mandate under CVC Act.  But the chairman and members of the CVC would be ex-officio members of Lokpal, and they would be appointed and removed in the same manner as the Lokpal.  The CVC and the Lokpal can thus be seamlessly integrated.
Bogey of federalism
That leaves us with the issue of states’ rights. Article 253 of the Constitution clearly gives Parliament the power to legislate in respect of state subjects for implementing international treaties and conventions. After ratification of UNCAC on May 1, 2011, Parliament has the obligation to make the law applicable to states.
The Bill provides for the same provisions for states as for the union. There is no discrimination. The Bill does not seek to transfer powers to the union government. Appointment of the Lokayukta and all other related matters are dealt within states. All procedural matters in relation to investigation and prosecution of anti-corruption cases are in any case under Parliament’s concurrent jurisdiction under items one and two of List III.
All incidental service matters will now come under Parliament’s concurrent jurisdiction under Article 253. Several laws have been made earlier in pursuance of international conventions – the laws on money laundering and human rights commission are prime examples. Laws like Right to Information Act and National Rural Employment Guarantee Act have been enacted applicable to states.
Precedents invoking Parliament’s jurisdiction clearly exist. All our procedural and criminal laws – CrPC, CPC, Evidence Act, IPC etc have been made by Parliament, and are applicable to states. None of them is seen as an encroachment of states’ rights.
In any case, in deference to the wishes of certain parties and in recognition of the need for compromise to obtain Parliamentary majority, The Bill has been amended in the Lok Sabha, providing for application of the law to states only with their prior consent. Given these circumstances, the argument that states’ rights are violated by making a law that would apply to only those states that consent to it is unsustainable.
A few suggestions
We have an impasse. What can be done to salvage the situation? The following two steps would be helpful.
First, government should be willing to strengthen the law in six respects – Suo motu powers to Lokpal /Lokyukta; creation of Lokpal’s own investigative agency; making CVC members ex-officio members of Lokpal; repeal of Sec 6A of Delhi Special Police Establishment Act, and repeal or amendments of Sec 19 of Prevention of Corruption Act and Section 197 of Cr PC; same provisions to apply to state ACBs as are contemplated, or already exist, in respect of CBI; and power to Lokayuktas to appoint required number of Local Ombudsmen or Lokadhikaris to deal with corruption in local authorities and at lower levels in each district, but under Lokayukta’s control.
These six provisions will create genuinely autonomous, effective, anti-corruption agencies, and strengthen the Ombudsmen. These measures would be in consonance with the present features of the Bill, and would not in any way weaken the architecture of the respective institutions.
Second, the Lokayukta provisions should remain in the statute; but the language of amended Section 1 could be made even more explicit to unambiguously declare that the Lokayukta and ACB provisions apply to states only after their prior legislative assent by form of a resolution. This is a retrogressive step, but necessary to get the regional parties on board to ensure that the Bill is not sacrificed on the altar of states’ rights.
The pending laws on service delivery and grievance redressal (citizen’s charters), whistleblowers’ protection, and judicial standards and accountability should be enacted along with the Lokpal law.
Bury the hatchet
If, for some reason, resolution of the issues on Lokpal and Lokayukta takes time, one way out would be for the Congress and the BJP to bury the hatchet and  approve the Constitutional amendment in the first instance.
Some eminent jurists believe it may be worthwhile enacting the Constitutional amendment with bipartisan support outlining the general principles of independence and effectiveness, and making it mandatory for Lokpal and Lokayuktas to be established.
The finalising of details and hammering out an acceptable compromise need not hold up a mandatory institutional framework being incorporated in the Constitution.  This will also address the issue of “rights of states” once and for all.
The failed  Constitutional amendment Bill provides for the appropriate legislature making the laws governing the details of Lokpal / Lokayukta. This will address both the need for Constitutional mandate and the federal principle. There is no realistic reason why an acceptable legislation cannot be enacted soon, provided there is good will, mutual trust, and genuine resolve to confront corruption.
It is never too late to act. The last year has taught us valuable lessons. In the new year, we should apply these lessons, and act wisely and in concert to ensure creation of effective, independent, anti-corruption regimes and institutions across the country.
A former member of the National Advisory Council (NAC) and Administrative Reforms Commission, the writer quit the IAS in 1996 and runs an NGO, Lok Satta, which works for administrative and electoral reforms.
http://www.tribuneindia.com/2012/20120108/edit.htm