Anchor: Frank Rausan Pereira
Speakers: Satya Prakash, Legal Editor, The Tribune; Ashok Tandon, Senior Journalist; Abhishek Atrey, Advocate, Supreme Court
Why in the news?
- The Supreme Court on 17 January, 2019 fixed a February-end deadline for the search committee on Lokpal to recommend a panel of names for appointment of the country’s first anti-graft ombudsman.
- The search committee is headed by former apex court judge Ranjana Prakash Desai. A bench headed by Chief Justice Ranjan Gogoi directed the Centre to provide the search committee requisite infrastructure and manpower to enable it to complete its work.
- The bench, also comprising justices L N Rao and S K Kaul, said it would hear the matter again on March 7, 2019.
- Attorney General K K Venugopal, appearing for the Centre, told the bench there were certain problems like lack of infrastructure and manpower due to which the search committee was not able to hold deliberations on the issue.
- This edition of the Big Picture will aim to analyze the role and powers of the of the Lokpal and Lokayukta’s.
- The idea of creating an anti corruption ombudsman, in the form of a Lokpal, was first conceptualized in 1968 in the fourth Lok Sabha. Thereafter in 1971, 1977, 1985, 1989, 1996, 1998 and 2001 efforts were made to enact legislation to create the institution of Lokpal, but these efforts remained unsuccessful.
- Over the last few years the issue of enacting a law to create Lokpal has seen active citizen engagement.
What is the lokpal?
- Purpose – It is an institution that will inquire into allegations of corruption against certain public functionaries.
- Composition – The Lokpal shall consist of a chairperson and up to eight members.
- The chairperson and at least half of the members have to be current or former judges of the Supreme Court or Chief Justices of High Courts.
- The other members will have at least 25 years’ experience in matters related to anti-corruption policy, vigilance, public administration, finance, law and management.
- Selection – Under Rule 11 (2) of the Search Committee Rules, 2014, the search panel for lokpal recommends at least five names for chairperson and at least three times the number of vacancies in the case of members.
- This recommendation has to be placed before the high-power selection committee led by the Prime Minister.
- The selection committee comprises the Lok Sabha Speaker, the Leader of the Opposition, the Chief Justice of India and an eminent jurist as members.
- However, the court has for the past several months been constantly urging the government to complete the Lokpal appointment.
What was the delay in constituting the search committee itself?
- Although passed in 2014, the Lokpal and Lokayukta Act of 2013 was not implemented all these years because there was no Leader of Opposition (LoP) in the 16th Lok Sabha.
- However, the Supreme Court clarified that the Lokpal appointment process need not be stalled merely due to the absence of the LoP.
- For this, the court points to sub-section (2) of Section 4 of the original 2013 Lokpal Act.
- The section makes it clear that the appointment of the chairperson or members of Lokpal will not be invalidated merely because one of the members of the selection committee (the LoP) is missing.
- In short, the available members of the Lokpal selection committee could very well recommend suitable persons to the President for appointment to Lokpal.
- Thus, the Lokpal Act 2013 is deemed to be an eminently workable piece of legislation by the Supreme court.
- Also, a Parliamentary Standing Committee submitted its report on December 3, 2015, fully supporting the amendment to replace the LoP with the single largest Opposition party leader in the Lok Sabha.
Structure of the Lokpal:
- The institution of Lokpal is a statutory body without any constitutional backing.
- Lokpal is a multi-member body, made up of one chairperson and maximum of 8 members.
- The person who is to be appointed as the chairperson of the Lokpal should be either the former Chief Justice of India or a former Judge of the Supreme Court, or an eminent person with impeccable integrity and outstanding ability, having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
- Out of the maximum eight members, half will be judicial members.
- Minimum fifty per cent of the Members will be from SC / ST / OBC / Minorities and women. The judicial member of the Lokpal should be either a former Judge of the Supreme Court or a former Chief Justice of a High Court.
- The non-judicial member should be an eminent person with impeccable integrity and outstanding ability, having special knowledge and expertise of a minimum of 25 years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
- The members are appointed by the president on the recommendation of a selection committee. The selection committee is composed of the Prime Minister who is the Chairperson; Speaker of Lok Sabha, Leader of Opposition in Lok Sabha, Chief Justice of India or a Judge nominated by him/her, and one eminent jurist.
Analysis by the Experts:
What is the role of the Lokpal?
Satya Prakash, Legal Editor, The Tribune, weighed in with his points here.
- The Lokpal is an anti-corruption Ombudsman. We have had several other agencies, like we have had, CVC, etc. But the Lokpal is different in the sense that the Lokpal will have its jurisdiction over top political executives, including the Prime Minister.
- This is why the Lokpal is important- i.e. from the point of view of checking corruption at the political level. The Lokpal Act was passed in the year 2013 December, and was notified in the month of January 2014. In the past 5 years, we have not been in the position of installing a Lokpal. This is despite the Supreme Court’s intervention.
- So far, the leader of the single largest party in the opposition, has boycotted all the meeting so far of the Lokpal.
- It is important to note a Supreme Court ruling in this regard as well. The Court had ruled that even if one member of the Lokpal selection panel is not there, it will not vitiate the selection of the Lokpal.
- Thereafter, since things were not moving, an NGO, named Common Cause filed a PIL in the Supreme Court and now the Supreme Court is hearing the PIL and is asking the Government to expedite the process.
- Another problem was that after the expiry of Mr. PP Rao, who was a member of the panel as an eminent jurist, Ex-AG Mukul Rohatgi was appointed as an ‘eminent jurist’ on the Lokpal selection panel.
- However, the process has been very slow, and the Court has been trying to impress on the Government to expedite the process.
- Now that the Court has fixed a deadline of February 2019 end, one would hope that the search committee would complete its task and prepare a panel of names which the search committee can consider and take forward.
Why is it that we haven’t been able to appoint a Lokpal in all these years?
Ashok Tandon, Senior Journalist, weighed in with his arguments here.
- The idea of Lokpal and Lokayukta has become a political issue. This is why it has been hanging for such a long time. If one recalls, the idea of the Lokpal was taken from Sweden.
- Even the 1966 Administrative Reforms Commission, headed by Morarji Desai had suggested various steps to check graft in political circles and official circles, but initially the debate was whether the Prime Minister or the former Prime Minister would be a part of its jurisdiction. The debate continued on whether or not such institutions would be used to falsely implicate the Prime Minister.
- It was finally in the year 2013, when Anna Hazare launched the fast-unto-death at Ramlila Maidan that the UPA government hurriedly passed the Lokpal Bill in 2013, which came into effect in 2014. There was another debate that emerged on whether the Lokpal should be a single member or a multi-member forum.
- There has been a sense of apprehension in the minds of the political class.
- We have bodies such as the CBI, the CVC, and we have the enforcement directorate. Thus, we have many agencies already in the same line of work.
- Also, before the law came into force in the year 2014, several states already had a Lokayukta. As a matter of fact, some of these states already appointed a Lokayukta, while some don’t have one appointed even today.
- The experience of having a Lokayukta in many states has not been very positive. Some states today in India have raised question marks over the idea of the Lokpal itself and whether or not we would need an institution like it.
- As a matter of fact, the recent unfortunate incidents in the CBI has again raised eyebrows- the contention being that if an institution like the CBI is getting involved in a ruckus where its own officers are bickering over a particular issue, then would an institution like the Lokpal be effective in a democracy like India?
What is the jurisdiction of the Lokpal?
Abhishek Atrey, Advocate, Supreme Court, weighed in with his arguments here.
- The jurisdiction of the Lokpal is very wide. It includes the Prime Minister, all other ministers, all top officials.
- The Chairperson would be a former Chief Justice, or a sitting or former judge of the Supreme Court of India. They have the powers to give directions to all the agencies in India, like the CBI, the CVC, etc. They can suspend or transfer any officer who is coming in the way of an enquiry.
- The Lokpal will work as an investigative agency, as well as a prosecuting agency. They shall have special courts. As a matter of fact, for removing the Chairperson or the other members of the Lokpal, the process that has to be followed is similar to the impeachment process of a judge.
Do we need Lokpal and Lokayukta’s?
Satya Prakash, Legal Editor, The Tribune, weighed in with his arguments here.
- Yes, we would need a Lokpal and Lokayukta’s. The only question to be looked into is the amount of power that should be given to them.
- Currently, we are in a situation where the authority of the executive has been deteriorated significantly. All executive institutions, because of various reasons are losing credibility.
- Further, in many areas, the judiciary has encroached.
- Further, while appointing a Lokpal, the executive powers are being shared with the judiciary as certain members of the judiciary should also be present. In appointing a Lokpal, someone from the judiciary becomes part of the executive exercise. Thus, to this extent, the power and authority of the executive has been significantly eroded.
- However, what is important here to note is that if such a body is created, and if it is given authority over the Prime Minister, we cannot have two power centres. In this sense, the Lokpal would be too powerful a body to have in India. (Thus, in the view of Mr. Satya Prakash, the office of the Prime Minister should be kept aside from the ambit of the Lokpal).
- Further, the ambit of the Lokpal has been made so wide that all the Government officers, even the Non-Governmental organizations receiving money to a particular extent is also amenable to the jurisdiction of the Lokpal. The irony is that the Lokpal doesn’t have an investigating agency of its own; it would have to depend upon the CBI (which has already been referred to as a caged parrot). Thus, there are too many contradictions in the entire process. Even if it is installed, my hunch is that initially, it will have problems and it may not take off quite well. Perhaps in the next few years, after some judicial pronouncements or amendments, it might work well.
Would a diluted Lokpal work?
Ashok Tandon, Senior Journalist weighed in with his arguments here.
Well, there has already been one amendment in which the spouses and the son’s and daughters have been taken out of the purview of the Lokpal. The law was passed in a hurry in the wake of the Anna Hazare agitation and now problems are surfacing. However, if we look at the experience of the Lokayukta’s in the states, we realize that they were burdened with all kinds of frivolous complaints- this is because when we know that there exists and institution to receive complaints, all sorts of frivolous complaints are sent which makes scrutiny difficult. This is the experience of the states which already have the Lokayukta. Therefore, the very idea of Lokayukta seems to get defeated.
In a democracy like India where we already have checks and balances in our constitution, and that our judiciary is quite vigilant, we still do need a Lokpal. In India, no one ever thought that they would come out and hold a press conference against the Chief Justice of India. Thus, an important question arises: what happens if the members of the Lokpal come out openly and accuse the chairperson. All sorts of apprehensions are there in the minds of the people and in particular, the political class.
However, one is glad that the deadline has been fixed. There were many hurdles created in the past which came across something preventing the constitution of a Lokpal. It is hoped that the Search Committee will come up with some name. It is hoped that the Lokpal is set up soon and before the General Elections of 2019.
How would we change the powers conferred to the Lokpal and the Lokayukta’s in case a dilution needs to be done or something needs to be added?
Abhishek Atrey, Advocate, Supreme Court, weighed in with his arguments here.
The Lokpal has to work within the system- i.e. the process of trial would have to be initiated in the special courts against the accused under the Prevention of Corruption Act and the IPC. Thus, ultimately the matter would go before the judiciary. Thus, the judicial system, would have to be reformed first if we want results against corruption. Currently, there are so many vacancies in our judicial system. The number of vacancies in the judiciary are not growing commensurate with the increasing population. Further, the Chairperson of the Lokpal can only be removed through a process of impeachment, which is in itself quite laborious.
Ashok Tandon, Senior Journalist also weighed in with his arguments here.
I have full faith in the judicial system, and faith in the bench of the Lokpal. However, the only problem is that if there are frivolous complaints, and if they are immediately leaked to the media, then there will be a trial by the media itself. Further, suppose there is an inquiry to be initiated against the Prime Minister, and this leaks to the media, then it would amount to a media trial. Thus, the real concern is that people will file frivolous complaints against people in high positions just to malign them. Today, unfortunately, the moment there is a raid, the moment there is an arrest, it gets highlighted in the media. So, the apprehension of trial by the media would need to be looked into. There may also be a demand from certain quarters that the hearing of the Lokpal be made public. Having said this, in a democracy like India, there must be a trial given to the idea of the Lokpal. Post this, amendments can be made into the Lokpal Act like it has been done before. Having said this, some headway should be made in so far as realizing the idea of the Lokpal. Currently, it looks as though deliberately, hurdles are being put up to come in the way of the Lokpal.
Some states have Lokayukta’s while some don’t- what is the problem there?
Satya Prakash, Legal Editor, The Tribune weighed in with his arguments to this question.
- Well the problem with the states is exactly what is happening at the Centre.
- The political class is very apprehensive about installing a Lokpal or a Lokayukta in many states. For example, in Karnataka, the Chief Minister had to resign because of certain reports submitted by the Lokayukta.
- The current law has been made in a hurry largely because of civil society agitation.
- Civil society agitations have in many ways some positive impact on law making as it changes the entire dynamics of law making. This is because law making is largely a top-down phenomenon.
- The law makers and policy makers decide what the law should be and they enact it and implement it. However, here there are some exceptions of a bottom-up approach for example: the RTI and the Lokpal where the people from the grassroot level or the civil society decided that they should have a particular kind of law and they launched a campaign to which the political class had to accede to. The law was so hurriedly enacted that in the process, there were flaws in the law.
- This can be rectified in due course, but there are certain aspects of this law which needs to be corrected: The Lokpal should have its own investigation wing- this is because the CBI is already too burdened. If the CBI has to investigate all the cases which the Lokpal needs to investigate, then the CBI’s manpower, infrastructure, etc. would also need to be augmented.
Ashok Tandon, Senior Journalist also weighed in with his arguments here.
The then Lokayukta of Karnataka, Mr. Santosh Hegde indicted Mr. Yeddyurappa who was the then CM of Karnataka resulting in the eventual resignation of the CM. However, Mr. Yeddyurrappa got acquitted from the CBI Court and he is free today. Today, in light of the events in the CBI, several states are openly opting out of a CBI enquiry. Thus, in a federal structure what would happen if there is a complaint from the state referred by the Lokpal to the CBI and the states refuse to cooperate. Thus, all these issues need to be addressed. However, having said this, we must give a try to the institution of the Lokpal.
Satya Prakash, Legal Editor, The Tribune also weighed in with his arguments here.
There are 8 members on the Lokpal. It is understandable that half of the members of the Lokpal should be from the judiciary, but there is another clause that says that half of the members should belong to Scheduled Castes, Scheduled Tribes, Backward Classes, Women, Minorities, etc. However, there is no way that one can say that a particular community member would be best suited to investigate. However, what is required is that any person belonging to any community, caste or creed, should be given preference in so far as choosing people to investigate a case is concerned. As far as investigation of corruption cases is concerned, merit should be given preference over everything else.
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