July 13, 2003

LOK PAL BILL IN PRESENT FORM IS SELF-DEFEATING
PROVISIONS SHOULD BE CHANGED FOR AN EFFECTIVE LOK PAL

New Delhi : The long cherished dream of getting an institution of the Lok Pal in India seems just a short step away. But we are never sure, for the first Lok Pal Bill was tabled in the Parliament long back in 1968, and over the years , the successive governments talked of the legislation, tabled it six times in the Parliament, and then allowed it to be lapsed.

Presently, the Lok Pal Bill , which has recently got clearance from the Cabinet, is a secret document until it is tabled in the Parliament. However, some of the new features of the Bill, which is intended to be tabled in the coming monsoon session of the Parliament itself, have been officially disclosed in a press briefing here last week. One of the new welcome feature of the Bill is inclusion of the Prime Minister of India under its purview, but many loop-holes has been left which may defeat the basic purpose of the Bill.

Given the political permutations and combinations in the Parliament this time, one may hope for the Lok Pal Bill passed. But, just passing the Bill in its present form would not be a big deal. It is self-defeating in many respects. Therefore, questions must be asked inside and outside the Parliament to fine-tune several provisions of the Bill for an effective and impartial Lok Pal.

The Lok Pal Bill, approved by the Cabinet meeting chaired by the Prime Minister Atal Behari Vajpayee, is said to retain most of the key features of the 2001 legislative proposals. Therefore, it can be safely argued that the Lok Pal regime which the Centre is going to put in place can not be effective and impartial.

We can not hope an effective and impartial Lok Pal if the process of selection of the Lok Pal itself is defective. According to the provision of selection of the Lok Pal, the selection committee is comprised of the Vice President, the Prime Minister, the Lok Sabha Speaker, the Union Minister of Home Affairs, the leader of the House in Rajya Sabha ( in case the Prime Minister is from the Lok Sabha), and the leaders of the opposition in the Lok Sabha and the Rajya Sabha. It is clear from the structure of the selection committee that the ruling establishment can select a person of its choice and the opposition could do nothing. The provision itself is heavily tilted towards the ruling party, who would be able to appoint their own man on this post. Therefore , the ruling establishment is safe unless the Lok Pal behaves like Bhasmasur and tries to take action against its creater Prime Minister, which would be a rare thing.

This Lok Pal would have to work under constant pressure from the government on various counts including funds and investigation mechanism. One of the major reasons is that this Lok Pall Bill is not a constitutional amendment bill. It can be passed by simple majority in the Parliament and can, therefore, be repealed by simple majority. It would get funds from the budgetary allocation, which is decided by the Union Finance Minister, and would not get operational funds from the consolidated fund of India. In this way , this institutional watchdog to check corruption and nepotism or partisan attitudes in the high places, will have to largely depend on the government of India because it is not a constitutional independent body.

We already have an experience of the institution of Lokayukta's functioning in various states of the country. In some of the states , the Chief Ministers have also placed under their jurisdiction. Barring few exceptions , the Lokayukta's have been rendered ineffective by the much corrupt political systems of our states. While cases of corruption has been piling up in their offices, Lokayukta's are not in a position to take prompt actions. They do not have sufficient official accommodation and other facilities, funds , and staff. They are handicapped. They do not even have any independent investigating agency. Only in Madhya Pradesh, the Lokayukta had had an independent agency to investigate the cases. The intelligence department Madhya Pradesh was attached with the institution of the Lokayukta which had enabled the Lokayukta to function more effectively than any other Lokayaktas of the country. However, the Lokayukta of Madhya Pradesh has , in later days, been systematically made ineffective.

It seems that we did not learn any lesson from the unhappy experience of the state-level ombudsman. What other proof is needed for it, if all the lacunae is left there in the proposed Lok Pal Bill !

If the proposed Lok Pal Bill is passed in the present form, then there will not be any independent investigating agency with this institution. The Lok Pal have to rely largely on the other government agencies for investigation of the corruption charges made against the public servants at high places, under whom the government agencies function. It may hamper the very process of investigation and the impartial probe would remain a dream.

In the changed scenario, we have Vigilance Commission in our country. The Central Bureau of Investigation functions under the Vigilance Commission. Corruption charges against public servants including the former Prime Minister is investigated and pursued by this institution. It has teeth. And therefore it is effective. However, its effectiveness can be hampered by some interested parties using one of the provision of the proposed Lok Pal Bill. The provision says that if a case is filed before the Lok Pal, no other agency, including the judiciary can launch any proceeding against the public servant during the pendency of the case with the Lok Pal.

This provision is beneficial for the public servants because they can save themselves for a longer period by using this expediency from any stringent penal provisions under other laws of the land. At the most, they can be indicted by the Lok Pal if the case against them is proved. The proposed Lok Pal can give instructions to the public servants but do not have any power to punish the culprit.

The Vajpayee government has claimed that the proposed Lok Pal Bill keeps intact the provisions intended to secure the independence and the autonomy of the Lok Pal. In this regard , it was said that no ombudsman would be removed except after an inquiry made by a committee consisting of the Chief Justice of India and two other senior most judges of the Supreme Court. This provision can only give some sense of security to the Lok Pal in the matter of his removal, but can not enable the institution to function independently with financial and administrative autonomy.

The Union Cabinet has, of course, decided to incorporate the recommendations of the Parliamentary Standing Committee on Home Affairs on the Lok Pal Bill, 2001 presented to the Lok Sabha Speaker and the Rajya Sabha Chairman on December, 31, 2001 and tabled in the Parliament on February 26, 2002, but effectiveness and impartiality of the Lok Pal needs much more. Without sufficient powers, teeth, funds, and infrastructure, the proposed Lok Pal may meet the same fate as the Lokayuktas of our states.

The way this legislation has been stalled for the last 35 years by our political class clearly shows how serious are their so called efforts in taking action against corruption in high places. Even now, the lacunae left in the Bill embodies the system's resistance to it and shows willinglessness to open the door for its scrutiny and accountability.(EOM)