Dodging the drafts

CV Madhukar, Kaushiki Sanyal, Indian Express, Apr 08, 2011

Social activist Anna Hazare’s fast unto death for the enactment of a strong Lokpal bill has provided an impetus to examine not only the bill proposed by civil society activists but suggestions made by various experts.

The idea of establishing an authority where the citizen can seek redress against administrative acts of the government was first mooted in 1963, during a debate on demands for grants for the law ministry. Under the existing system, a citizen can either move court or seek other remedies such as petitioning his member of Parliament. However, these remedies are limited because they maybe too cumbersome or specific grievances may not be addressed. Also, the laws that penalise corrupt officials do not have provisions to redress specific grievances of citizens. Currently, corrupt public officials can be penalised under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. Both these laws require the investigating agency to get prior sanction of the Central or state government before it can initiate the prosecution process in a court.
Social activist Anna Hazare’s fast unto death for the enactment of a strong Lokpal bill has provided an impetus to examine not only the bill proposed by civil society activists but suggestions made by various experts.

The idea of establishing an authority where the citizen can seek redress against administrative acts of the government was first mooted in 1963, during a debate on demands for grants for the law ministry. Under the existing system, a citizen can either move court or seek other remedies such as petitioning his member of Parliament. However, these remedies are limited because they maybe too cumbersome or specific grievances may not be addressed. Also, the laws that penalise corrupt officials do not have provisions to redress specific grievances of citizens. Currently, corrupt public officials can be penalised under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. Both these laws require the investigating agency to get prior sanction of the Central or state government before it can initiate the prosecution process in a court.
The office of Lokpal or Ombudsman seeks to provide a forum for citizens to complain against public officials. The Lokpal would inquire into such complaints and provide some redressal to citizens. The basic idea of the institution of Lokpal was borrowed from the concept of Ombudsman in countries such as Finland, Norway, Denmark, Sweden, the UK and New Zealand. At present, about 140 countries have the office. In Sweden, Denmark and Finland, the Ombudsman can redress citizens’ grievances by either directly receiving complaints from the public or suo motu. However, in the UK, the office of the parliamentary commissioner can receive complaints only through MPs (to whom the citizen can complain). Sweden and Finland also have the power to prosecute erring public servants.

The first Lokpal bill in India was introduced in 1968, which lapsed with the dissolution of the Lok Sabha. The Bill was introduced seven more times in Parliament, the last time in 2001. Each time it lapsed, except in 1985 when it was withdrawn.

Several commissions have examined the need for a Lokpal and suggested ways to make it effective, without violating constitutional principles. They include: the first Administrative Reforms Commission (ARC) of 1966; the National Commission to Review the Working of the Constitution of 2002; and the second Administrative Reforms Commission of 2007. The Lokpal bills that were introduced were referred to various parliamentary committees (the last three bills were referred to the standing committee on home affairs).

The first ARC report recommended that two independent authorities be created to redress grievances: first, a Lokpal, to deal with complaints against the administrative acts of ministers or secretaries of government at the Centre and the states; and second, a Lokayukta in each state and at the Centre, to deal with complaints against the administrative acts of other officials. Both these authorities should be independent of the executive, judiciary and legislature, and appointed by the president on the advice of the prime minister, the leader of the opposition and the Chief Justice of India.

The National Commission to Review the Working of the Constitution urged that the Constitution should provide for the appointment of the Lokpal and Lokayuktas in the states but suggested that the prime minister should be kept out of the purview of the authority.

The second ARC, formed in 2005, also recommended that the office of the Lokpal be established without delay. It was in favour of including ministers, chief ministers and members of Parliament. However, it wanted to keep the PM outside the Lokpal’s ambit. The ARC also recommended that a reasonable time limit for investigation of different types of cases should be fixed.

The 1996, 1998 and 2001 bill covered the PM and MPs. The standing committee examining the 1998 bill recommended that the government examine two basic issues before going forward with the bill: first, MPs are deemed to be public servants under the Prevention of Corruption Act, 1988 and thus, if they are also brought under the purview of the Lokpal, it may be “tantamount to double jeopardy”; and second, subjecting MPs to an outside disciplinary authority may affect the supremacy of Parliament.

The 2001 bill was also referred to the standing committee, which accepted that the PM and MPs should be included in the bill. It further recommended that a separate legislation be enacted to ensure accountability of the judiciary. It, however, stated that the bill did not address public grievances but focused on corruption in high places.

The states have been more successful in establishing the Lokayuktas. So far, 18 states have enacted legislation to set up the office of Lokayukta. While the Karnataka Lokayukta is often hailed as a successful case, several other states have had limited success in combating corruption, since all of them are recommendatory bodies with limited powers to enforce their findings.

A group of ministers is looking into ways to tackle corruption, including the establishment of a Lokpal. A public debate on the issues raised by various committees would help iron out the weaknesses of any proposed legislation.