Given the patchy record and reputation of the existing anti-corruption mechanisms, the Lokpal of India has the onerous task of restoring people’s faith that the high and mighty could be made accountable for their transgressions.
- Prasanna Mohanty
- New Delhi
- June 4, 2019
- UPDATED: June 14, 2019 09:28 IST
Ared-letter day in India's fight against corruption passed virtually unnoticed when the President's Secretariat announced appointment of Justice (retd) Pinaki Chandra Ghose as the first Lokpal of India, along with eight judicial and non-judicial members, on March 19, 2019 - bang in the middle of a high-pitched election campaign.
It was the First Administrative Reforms Commission of 1966 which came up with the idea of a Lokpal as an independent body to inquire into corruption in high places after the Mundra and other corruption scandals hit India in the 1950s and 1960s and led to the resignations of two stalwarts of their time - TT Krishnamachari and Pratap Singh Kairon. The National Commission to Review the Working of the Constitution (2002) and Second Administrative Reform Commission (2007) too sought such an ombudsman.
Starting with 1968, when the first Lokpal Bill was introduced in the Lok Sabha, it took eight more such attempts -1971, 1977, 1985, 1989, 1996, 1998, 2001 and 2011 - before being finally passed in December 2013 and notified on January 1, 2014. Thereafter, it took five more years for the appointment of the Lokpal to happen in March this year. It will be a while before the Lokpal of India actually gets going.
This article is the seventh in a series that looks at the agenda for the Narendra Modi government's second term. Read the first, second, third, fourth, fifth and sixth part.
Credible process of appointment of the Lokpal
The appointment of the Lokpal, however, has come under a cloud for not being bipartisan or transparent in the process.
A bipartisan selection process, in which both the ruling and opposition parties have a say, is aimed at inspiring trust in the individual holding high office for neutrality or independence from executive interference. If this did not happen in the case of the Lokpal a part of the blame goes to the law itself - the Lokpal and Lokayuktas Act of 2013 .
The law does provide for representation of the opposition party. Section 4 mandates a Selection Committee comprises of the Prime Minister, who will chair it, and four other members - the Lok Sabha Speaker, Leader of Opposition in Lok Sabha, Chief Justice of India or a Supreme Court judge nominated by him/her and an eminent jurist as recommended by the rest four.
But section 4 (2) says, "No appointment of a chairperson or member shall be invalid by reason of any vacancy in the Selection Committee". It was this clause and the fact that no Leader of Opposition had been recognised by the outgoing Lok Sabha Speaker, the selection of the Lokpal went ahead without the opposition's representation.
Congress MP Mallikarjun Kharge, leader of the largest opposition party in the Lok Sabha, was invited to the Selection Committee meetings as a 'Special Invitee' on several occasions but he refused to join, protesting that there was no provision for a Special Invitee in the law and that such a person "would not have any rights of participation in the process of selection of the Lokpal" (meaning no voting right).
After the 16th Lok Sabha was reconstituted in 2014, the Speaker Sumitra Mahajan had denied the Leader of Opposition post to the Congress or to any other party for not having 10 per cent of the total membership of the House (or 55 of 545 seats). The Congress had emerged as the largest opposition party with only 44 members.
Faced with a similar situation in the selection of the CBI Director, the government had amended the Delhi Special Police Establishment Act in November 2014 providing that "where there is no such Leader of Opposition, then, the Leader of the single largest Opposition Party in that House" would be part of the selection process as a member.
The government did introduce an amendment in 2014 on similar lines for the Lokpal but it was never passed.
As for transparency in the appointment process, section 4(4) of the law says, "The Selection Committee shall regulate its own procedure in a transparent manner for selecting the Chairperson and Members of the Lokpal".
But as a reply to the RTI query shows, the minutes of the meetings of the Selection Commission was denied by the government by saying that, "As regards the minutes it is submitted that the authorship of such documents which include 3-5 high level dignitaries does not vest in the Department of Personnel & Training (DoPT) and same have been shared as secret documents. Thus copies of the said documents cannot be provided".
Winning the trust of the people
Needless to say, the bipartisan appointment and transparency in the process need to be ensured to inspire faith in the Lokpal of India.
There are a few more critical challenges which need to be addressed too.
One is to strike out the amendment in the Prevention of Corruption Act of 1988 which brought back the 'single directive' by stating that no inquiry or investigation can be conducted "without the previous approval in the case of a person who is or was employed, at the time when the offence was alleged to have been committed". The Supreme Court has already struck down such a provision twice in the past.
Such a change is important because the Lokpal is meant to investigate only those complaints which are "punishable under the Prevention of Corruption Act, 1988".
Second is to restore the original section 44 of the Lokpal and Lokayuktas Act of 2013 which required the public servants to declare their assets and liabilities and those of their spouses and dependent children within 30 days of the law coming into force. After postponing its application by using the leeway provided in section 62, it was amendment in 2016 to say that such disclosures should be made under "the rules" to be framed for the purpose. An Office Memorandum later declared that such rules were being "in the process of finalising". Nothing more has been heard of it.
Third is to provide the Lokpal with a credible "inquiry wing" as soon as possible. As of now, it will be relying on the very same "officers and other staffs" of government for looking into complaints of corruption (section 11). Given the records and reputations of the existing anti-corruption mechanism, this is a big handicap.
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