IC Centre for Governance Comments on Comparative Chart of the two Lokpal Bills That the successive governments have

failed to check corruption by the top functionaries as well as at the cutting edge is well established. Despite pronouncements in the manifestoes of the political parties and institution of anticorruption agencies at every level, the scourge of corruption has continued to flourish. According to many observers, the dimensions of corrupt activities in government have increased exponentially during the last two decades. No government has been able to enact the official Lokpal Bill over the last four decades. Therefore, it is legitimate to question the intentions of the government. It can also be easily deciphered that the Anna group is determined for the creation of an immensely powerful Lokpal with the objective of bringing people in government to book for corruption and misconduct in the discharge of their duties. They are also of the view that government tends to conspire with the corrupt and delinquent. Therefore, they have tried to incorporate every conceivable check on the powers of the government through the institution of the Lokpal. The arguments proffered by Annas followers seem to cast suspicions on the intent of the government. For them, it is irrelevant that the ministers are representatives of the same people Annas followers profess to represent. For them, it is appears immaterial that the official machinery is established under due process of law and regulations. On the other hand, the statements on behalf of the Government doubt Annas Group as the sole representative of the civil society. The machinations in the Joint Drafting Committee should be seen in this perspective of mutual distrust. Point 1 Whether allegations against the Prime Minister should be investigated by the Lokpal There is ample justification in the argument for bringing the office of the Prime Minister under the investigative powers of the independent Lokpal because under the existing dispensation, the investigating agency (CBI) working directly under the Prime Minister cannot be expected to be impartial. It is foolish to assume that PM can do no wrong. At the same time, it must be appreciated that the Indian Prime Minister is the most powerful man in the country and is charged with taking momentous decisions in times of national and international crises. To make him dysfunctional by Lokpals investigations at the instigation of his political adversaries or anti-national actors would not be in the national interest. We are of the view that while PMs corrupt acts must be enquired into; there should be strong safeguards to protect him against motivated complaints. It is suggested that a complaint of corruption against the Prime Minister should be heard by a full bench of the Supreme Court. If the Supreme Court finds sufficient merit in the complaint, it could entrust the investigation to the Lokpal.

Point 2 Whether Lokpal should have powers to investigate allegations of corruption against the judiciary This point is linked with points 7 and 8. The Lokpals accountability is suspect according to the draft of Annas group. It is questionable whether every member of Lokpal, once selected by a committee of politicians, bureaucrats holding Constitutional positions and a few judges, would be incorruptible and upright. And the possibility of the Lokpal becoming more powerful than the government and the judiciary cannot be ruled out if the higher judiciary is also under its coverage. In Annas draft, the Lokpal enjoys administrative powers over the legislature, bureaucracy and the judiciary alike. It has even the authority to remove any civil service or judicial officer from his job. There is a distinct possibility of Annas Lokpal, instead of eliminating corruption, may become another centre of corruption. In that case, there will be nobody to check its excesses. In view of the principle of accountability, it is essential that the judiciary remains out of the purview of the Lokpal. Complaints against the members of Lokpal should lie in the Supreme Court and the investigations in charges of corruption against them should be investigated by special investigating teams constituted by the Supreme Court. At the same time there should be a separate Judicial Accountability Act as is being contemplated. We suggest that the Judicial Accountability Bill should be tabled in the parliament along with Lokpal Bill.

Point 3 Whether Lokpal should investigate the conduct of MPs inside the Parliament This will amount to the Lokpal exercising control over the legislature. The actions of the MPs inside the Parliament cannot be questioned outside the concerned House and will definitely constitute contempt of the House. It is even doubtful whether a Constitutional amendment can give such powers to the Lokpal. Therefore, such powers should not be provided in the Act. Point 4 Whether violation of Citizens Charter should be deemed to be corruption and the officers should be penalized by Lokpal As explained in our earlier communication, the sole focus of the Lokpal and the Lokayuktas should be on detection, investigation and prosecution of persons involved in corrupt acts. This will be enough to keep the Lokpal and Lokayuktas completely busy. If the Lokpal is also burdened with dealing with grievances of the citizens, violations of Citizens Charters and misconduct of government servants, it will not only be overburdened but also would be interfering with the legitimate functions of

other institutions of the State. We hope that the intention of Annas group is not to cripple every other organ of the State. It would be naive to expect the Lokpal to solve all the problems of the people singlehandedly. The premise that every other agency of the government is inefficient and corrupt and that the Lokpal and its employees will be multi-skilled paragons of honesty is too utopian. The solution to lack of good governance is not in concentrating all powers in one organization but in addressing the deficiencies in every state institution. A beginning should be made with attempting a time bound consideration of the recommendations of the Administrative Reforms Commission.

Point 5 Whether Anti-corruption Branch of CBI should be merged into Lokpal It is necessary to give full freedom to the Lokpal and Lokayuktas in the investigation of offences of corruption. Therefore, the wing of the CBI dealing with acts of corruption should be transferred to the Lokpal. Similar action needs to be taken in the states.

Point 6 Composition of the Selection Committee and Search Committee We have no strong views about the composition of the Selection Committee except that it should not be controlled by the Government of the day. There should be majority of persons not susceptible to the pressures from the government. Constitutional authorities like Chief Election Commissioner, Chairman UPSC and Comptroller & Auditor General apart from Judges of the Supreme Court should be on the selection committee.

Point 7 Who will Lokpal be accountable to Already answered in point 2 Point 8 Complaints against Lokpal Already answered in point 2

Point 9 Method of enquiry We agree with the proposition of Anna Hazares draft. The mode of enquiry should follow the normal provisions of Criminal investigations, but care needs to be taken against victimization of innocent officials. It is, therefore, necessary that motivated complaints of petty nature do not necessarily result in prosecution. For this purpose, Lokpal will have to issue necessary guidelines to the investigating staff.

Point 10 Coverage of lower bureaucracy There is no logic of leaving out the lower bureaucracy from the purview of the Lokpal or Lokayukta. However, if the number of complaints against lower functionaries becomes unwieldy, a mechanism will have to be envisaged to deal with such complaints without the quality of enquiry/investigation being adversely affected.

Point 11 Whether the same bill should create Lokayuktas It will be desirable to create Lokpal and Lokayuktas by the same Act, provided it is constitutionally feasible. The example of RTI Act is relevant in this regard. But if it is not possible to do so, a model bill should be suggested for consideration of the state governments.

Point 12 Whether Lokpal should provide protection to whistleblowers There should be a separate Whistleblower Protection Act. We believe that a bill to this effect is already under the consideration of the Government. Ideally, the responsibility of dealing with whistleblowers cases should be entrusted to the Lokpal and Lokayuktas.

Point 13 Whether Lokpal should decide on the creation of special benches in High Courts The Lokpal cannot and should not decide on creation of judicial benches. It can make suitable recommendations to the chief Justice in the interest of prompt disposal of cases.

Point 14 Suggested amendments in Cr P C No comments. The legal experts should be consulted.

Point 15 Whether Lokpal should order removal of government servants No. It is not the legitimate area of Lokpals authority and is likely to cripple the existing organization and structure of the government without due consideration of its consequences. Such a foolhardy provision is misplaced in a legislation meant to deal with corruption .It would amount to usurping the powers of appointing authorities including the President of India. Such a provision could only have been proposed by persons totally innocent of the functioning of a democratic government.

Point 16 Whether Lokpal should decide on its own budget No. The Lokpal cannot and should not be the final arbiter of its own budget according to the financial rules of the government. The normal budgetary procedures shall have to be followed like any other autonomous organization.

Point 17 Whether Lokpal should take steps to prevent corruption in an ongoing activity This is again a highly debatable provision, because it may result in undue interference in the functioning of the concerned departments. However, effective measures of prevention of corruption are needed. They should be examined by the Lokpal in consultation with the government. For the time being, this provision should not form part of the Lokpal Bill.

Point 18 Whether Lokpal should be empowered to tap phones No. It might lead to a Big Brother is watching you syndrome. The normal procedure followed by CBI should be followed by the Lokpal.

Point 19 Delegation of powers by Lokpal Some of the functions of Lokpal could be delegated .However, there should be explicit powers of delegation in the Act. A sweeping provision is not desirable.

Point 20 Whether NGOs should be covered In our view, NGOs substantially funded by the Government and those registered for accepting foreign remittances should be covered. Point 21 Whether false, frivolous and vexatious complaints should attract imprisonment Such complaints should be punishable with fine (say upto Rs 1 Lakh) or imprisonment up to 6 months or both.