What is this stuff anyway ?
First of all for the uninitiated, 'Lokpal' is a proposed constitutional authority (just like the CAG, Judiciary and Election commission) to make public officials and elected representatives accountable in matters of corruption. 'Jan Lokpal bill' is one of the several bills being proposed for the establishment of the 'Lokpal'. This particular bill is being promoted by 'India Against Corruption' under the social activist 'Anna Hazare'.
So what is this 'Jan Lokpal' bill ? 'A bill which will save India from corrupt politicians' would be the most probable answer you will find from majority of its supporters . Vast majority of them would never have read this bill or not even know what its provisions are. Still they support 'Anna' the self proclaimed messiah against all things corrupt. So what is this bill really about ? To find out, I decided to take a critical look at the bill and its provisions. Based on my analysis, these are the conclusions that I derived and my personal opinions for a better lokpal.
- All elected representatives (including cabinet and PM) and higher bureaucracy come under the jurisdiction of the Lokpal which creates a deterrent against corruption. [ Giving immunity for the top public officials and representatives against prosecution was the main reason for widespread corruption in the establishment. The rationale behind this immunity was not to cause unjustified interfere with decision making process. If this is dully considered in the provisions of the Lokpal, there is no reason why even the cabinet and PM should be left out. ]
- Provides provisions for the protection of whistle blowers [ A good step but the definition of whistle blower on the basis of threat may be problematic. An act already exists for this purpose which is 'The whistle blowers (protection in public interest disclosures) bill, 2006' ]
- Can receive complaints from the Public regarding matters of corruption
- Set Time limits for the proceedings [ Don't know how much practical this can be ]
- Brings anti-corruption wing of the CBI under Lokpal [ Would ensure the independence in dealing with high level corruption cases ]
- Transparency in transactions of the Lokpal [ Which should be the case for all public offices. This is essentially ensured by the RTI (Right to Information Act) ]
- The Lokpal will have powers above both the Parliament and the Judiciary. No suit/prosecution/legal proceedings can be initiated against the chairperson, members, officer, employee or agency in respect of anything while acting or purporting to act in the discharge of his official duties under the Act. No proceedings or decision of the Lokpal is liable to be challenged, reviewed, quashed or called in question in any court of ordinary Civil Jurisdiction. No democratic system can allow this much concentration of power within one authority. This itself would make the institution undemocratic and autocratic, and from a legal point of view unconstitutional. [ Instead I would support the following system. A lokpal accountable to the judiciary can be constituted to check corruption among elected representatives and public officials. A separate Judicial accountability commission ( composed of retired judges, representatives of the parliament and eminent legal professionals ) accountable to the parliament can be constituted to check corruption in judiciary. This way the purpose can be served without causing a concentration of too much powers. ]
- The selection process seems to be naive, anti democratic and written from a prejudice that all political leaders are corrupt. The only elected representatives in the selection comity are the chair persons of both houses of parliament. Also no person who ever had a political background cannot be selected into the lokpal as a member (Interestingly there is no bar for persons associated with religious groups). The selection committee is heavily tilted towards serving bureaucrats and Judges. Citizen participation is restricted to awardees of Bharat Ratna, Nobel laureates and Magsaysay Award winners. [ I would say that the selection committee should be composed of Judicial representatives, Elected Representatives, Professionals in legal area and representatives from social organisations (civil society). This formulation would ensure the selection of lokpal members without prejudice (due to balance of power in the selection comity). Also the blind restriction for persons who had any political background should be removed (because its not an evil to have a political outlook, at least not as evil as being apolitical). ]
- Lokpal has both investigative and judgmental powers. There was a reason why investigative authority was separated from judiciary. The mindset of the investigator is to prove the case against the accused and the function of judiciary is to acquit him on any reasonable doubt. Giving both investigative and judgmental powers to the same agency is the ultimate cocktail for 'not' ensuring a fair trial. [ Constituting special courts which is under the existing judicial system may be reasonable proposition ]
- Jan Lokpal imposes only a fine against wrongful accusations. This can cause the system to be misused leading to a flood of bogus complaints against non-corrupt officials. This could bog down the system and affect the moral of officials preventing them from taking difficult decisions. [ More stronger penalty including jail terms should be present depending on whether the applicant acted with genuine public interest or solely on prejudice/personal enmity. Although this on first look seems to be unreasonable, it is essential in a practical point of view if the system is to meet its intended goals. ]
- No proceedings or decision of the Lokpal is liable to be challenged, reviewed, quashed or called in question in any court of ordinary Civil Jurisdiction. This is a violation of the principle of natural justice. [ This provision should be removed. The law is not only for punishing corrupt officials, but should also for ensuring justice for honest individuals ]
- Regarding corruption allegations against its own officials, it seems that an internal investigation is initiated. This would have a very low chance of bringing culprits before the law. [ An independent agency should conduct the investigation ( which is a problem under Jan Lokpal because it will bring all anti-corruption agencies under its umbrella ) ]
- Including every public official under the Lokpal will require the creation of a large bureaucracy which, unlike the regular bureaucracy is not accountable to the people or the judiciary and at the same time wields immense powers. This will cause corruption within the Lokpal institution itself and would bog down the system because of the sheer magnitude of the cases it will have to handle. This would make it no different than the current courts. [ Solution would be to deal only with high level corruption only (upper bureaucracy, parliament members, cabinet and PM). Low level corruption can be left to the current system strengthened by stronger laws and regulations ]
- Half of the proceeds from economic recovery actions lie within the Lokpal for administrative reasons. This is not required as there are provisions for an independent budget to get funding from the consolidated fund of India and a special privilege to meet the PM to discuss financial requirements. [ A separate budget and the provision for using keeping half the proceeds can cause widespread financial irregularities within lokpal and should be removed ]
- And finally the Jan Lokpal is silent about corruption within the media, NGO's and corporates. Corporate corruption has been the root cause of many big scandals witnessed by the country in recent times. Leaving that out would be like treating the symptoms instead of the disease.