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Undermining the Lokpal

Anjali Bhardwaj (anjali.sns@gmail.com) and Amrita Johri (amritajohri@gmail.com) are RTI activists associated with Satark Nagrik Sangathan and the National Campaign for Peoples Right to Information.

The Lokpal law was enacted to set up an independent institution to ensure proper investigation and prosecution into allegations of corruption against public servants. Members of the Lokpal were appointed in 2019, more than five years after the law was passed, in a manner that undermined public trust in the institution. In 2016, even before the Lokpal became functional, amendments were made to weaken key provisions of the legislation relating to asset disclosures by public servants.

The Lokpal and Lokayuktas Act (L&L Act), 20131 (No 1 of 2014), was passed by Parliament in December 2013 and received presidential assent on 1 January 2014. The law was enacted to set up an independent and empowered anti-corruption ombudsman, which would work without fear or favour to tackle cases involving allegations of corruption against public servants. The Lokpal is envisioned to be independent, has been accorded a high stature and given extensive powers, including the power to inquire, investigate, and prosecute acts of corruption.

Political interference in the working of investigative agencies like the Central Bureau of Investigation (CBI) has been widely recognised and has also been, on multiple occasions, the subject matter of litigation in the Supreme Court.2 The preambular statement of the L&L Act, 2013 notes that the law is being enacted to ensure prompt and fair investigation and prosecution in cases of corruption.

The Statement of Objects and Reasons3 appended to the Lokpal and Lokayuktas Bill, 2011, noted that the need to have a Lokpal had been felt for a long time and the Administrative Reforms Commission had recommended, as far back as 1966, the setting up of the institution.

Whereas the law came into force on 16 January 2014 through notification in the Official Gazette (DoPT 2014), the institution of the Lokpal is still not operational. The chairperson and members of the Lokpal were appointed in 2019 (Langa 2019), more than five years after the law was enacted, in a manner that raised serious questions about the credibility of the selection process. In 2016, even before the Lokpal became functional, amendments were made to weaken key provisions of the legislation relating to asset disclosures by public servants.

The Question of Appointments

An important principle for ensuring independence of bodies like the Lokpal is that the selection committee responsible for making appointments to these institutions should not have a preponderance of representatives of the government and the ruling party. The composition of the selection committee was a contentious issue and was considered at length by the Parliamentary Standing Committee which examined the Lokpal Bill (Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice 2011). The L&L Act provides for the appointment of the chairperson and members of the Lokpal by the president based on the recommendations of a committee consisting of the Prime Minister (chairperson), speaker of the Lok Sabha, the leader of opposition (LoP) in the Lok Sabha, the chief justice of
India (CJI) or a judge of the Supreme Court nominated by them and an eminent jurist, as recommended by the chairperson and other members.

After the 2014 general elections, no one was recognised as the LoP in the Lok Sabha. In order to ensure a balanced selection committee in keeping with the spirit of the legislation, the government needed to bring a single amendment to modify the composition of the selection committee by substituting the recognised LoP with the leader of the single largest opposition party in the Lok Sabha. This problem was not unique to the Lokpal law. The Delhi Special Police Establishment Act (DSPE Act), which lays down the procedure for the appointment of the director of the CBI, also included the recognised LoP as a member of
the selection committee. The requisite amendment (Ministry of Law and Justice 2014) was promptly brought in the case of the DSPE Act for the appointment of the CBI director. In the case of the L&L Act however, the government introduced a 10-page amendment bill in December 2014,4 which instead of limiting itself to amending the composition of the selection committee, sought to fundamentally dilute the original law. Given the controversial nature of amendments, the bill was referred to a Parliamentary Standing Committee (Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice 2015) and was never enacted.

The matter of non-appointment of the Lokpal was agitated in the Supreme Court.5 In its judgment dated 27 April 2017, the Court recorded that the Attorney General stated that an amendment to alter the composition of the selection committee was pending in Parliament. Recognising its limitation in directing the legislature to pass the amendment,6 the Court held that in light of subsection (2) of Section 4 of L&L Act, which states that the appointment of chairperson or a member of the Lokpal will not become invalid merely because of any vacancy in the selection committee, the L&L Act was an eminently workable piece of legislation and the appointment could be made with a truncated selection committee without the LoP.

Despite the ruling of the Supreme Court, the government did not initiate the appointment process leading to a contempt petition being filed in the apex court in January 2018.7 Finally, the selection committee headed by Prime Minister Narendra Modi met for the first time in March 2018, nearly 45 months after the Bharatiya Janata Party (BJP) formed the government (Mandhani 2018).

The Prime Minister, speaker, and the CJI appointed Mukul Rohatgi, who served as Attorney General during the BJP regime, as the eminent jurist on the selection panel. In the absence of the LoP, the selection of the chairperson and members of the Lokpal came under a cloud with doubts arising about an inherent bias towards the selection of candidates favoured by the government.

Mallikarjun Kharge, leader of the largest opposition party in the Lok Sabha, was invited for the meetings of the selection committee as a “special invitee.” He declined8 the invite on the grounds that a special invitee “would not have any rights of participation in the process of selection.”

The Prime Minister-led selection committee constituted an eight-member search committee as per Section 4(3) of the L&L Act to shortlist candidates (DoPT 2018).

Subsection (4) of Section 4 of the L&L Act mandates that “(4) The Selection Committee shall regulate its own procedure in a transparent manner for selecting the Chairperson and Members of the Lokpal.” Transparency in the functioning of the selection panel could have helped allay fears that the committee was merely rubber-stamping the government’s choice of candidates. However, the functioning of the committee was shrouded in secrecy and no details of the selection process were placed in the public domain.

Minutes of meetings of the selection panel, sought under the Right to Information Act (RTI Act), were denied. The reply stated,

As regards the minutes of the meetings it is submitted that the authorship of such documents which include 3–5 high level dignitaries does not vest in the Department of Personnel & Training and same have been shared as secret documents. Thus copies of the said documents cannot be provided. (Mandhani 2018)

The denial of information was not in keeping with the provisions of the RTI Act, as none of the clauses listed in Sections 8 or 9 of the law, which can be invoked to exempt information, were relied on.

Lack of transparency, despite the statutory provision in the L&L Act, was highlighted in the contempt petition filed before the Supreme Court. However, the bench headed by the CJI in its order dated 7 March 2019 held that it was the Court’s considered view that no direction should be issued in this regard and that the matter should be left for determination by the selection committee.9

The Supreme Court’s reluctance to give any directions on the issue was at odds with the progressive stance taken by it in directing transparency in the appointment of other oversight bodies. In February 2019, the Court gave a landmark judgment in Anjali Bhardwaj and Ors v UOI and Ors (2018),10 to ensure transparency in the appointment of information commissioners under the RTI Act. It directed the proactive disclosure of details of applicants, shortlisting criteria adopted by the search committee, names of shortlisted candidates and details of meetings of the search and selection committees.

The composition of the selection committee, and the lack of transparency in the selection process by which the chairperson and members of the Lokpal were finally appointed in March 2019, have raised doubts about the independence of the Lokpal.

The 2016 Amendments

The Lokpal has been established to receive and inquire into complaints related to offences punishable under the Prevention of Corruption Act, 1988 (PCA). One of the grounds of criminal misconduct under the PCA relates to a public servant, or any person on their behalf, being in possession of pecuniary resources or property disproportionate to their known sources of income.11 As illegally amassed assets are often handed over to family members, Section 44 of the L&L Act required all public servants under the jurisdiction of the Lokpal to declare their assets and liabilities and those of their spouses and dependent children. These were required to be proactively disclosed on government websites. Public disclosure of assets and liabilities of
public servants was important to ensure that people could make informed complaints to the Lokpal.

The declarations were to be furnished within 30 days of the act coming into force. However, on 15 February 2014, one day prior to the expiration of the deadline, the government, invoking Section 62 of the act,  which gives it power to remove difficulties through an order published in the Official Gazette, extended the deadline to six months after the act came into force (DoPT 2014). Subsequently, the deadline was extended several times on the pretext that the Lokpal covered various categories of public servants and multiple rules regulating their asset disclosure norms needed to be amended to bring them in consonance with the Lokpal law.

The government introduced amendments to the L&L Act in Parliament on 27 July 2016, to dilute the provision related to asset disclosure and the amendment bill was hurriedly pushed through. The bill was brought to Parliament without any public consultation and was passed in the Lok Sabha the same day it was introduced without a detailed discussion on its provisions. Subsequently, the amendments were also cleared by the Rajya Sabha and assented to by the President12 on 29 July 2016. The L&L Act was thus amended, even before the Lokpal started functioning.

The amendments severely diluted the asset disclosure provisions of the Lokpal Act. The amended Section 44 of the law allows for the form and manner of disclosure of assets and liabilities of public servants to be prescribed by the central government through rules. Following the amendments, the Department of Personnel and Training (DoPT) issued an office memorandum dated 1 December 2016, stating that the government was in the process of finalising a new set of rules on asset declarations (DoPT 2016a).

The need for a thorough asset disclosure regime for public servants is globally recognised as an important element in an anti-corruption framework (World Bank 2012). Despite overwhelming public interest in comprehensive disclosure of assets, the 2016 amendments diluted the relevant provisions.

The Way Forward

In order to ensure proper functioning of the Lokpal, and to instil public trust in the institution, several urgent measures are required.

First, the issue of the constitution of a balanced selection committee, which does not have a majority representation from the ruling party, must be addressed. The composition of the selection panel needs to be appropriately amended to provide for the inclusion of the leader of the largest opposition party in the Lok Sabha as a member of the committee, in case no one is recognised as the LoP. The provision allowing a truncated selection committee to make appointments needs to be removed as it has the potential to be misused.

Second, the selection committee must adopt a robust procedure to ensure transparency in the appointment process as envisaged in Section 4(4) of the L&L Act. The procedure should mandate public disclosure of particulars of applicants, shortlisting criteria, records of deliberations, including minutes of meetings of the search and selection committee and material showing how the selected candidates fulfil the eligibility criteria. All records pertaining to the appointment of the chairperson and members of the Lokpal made in 2019 must also be placed in the public domain to enable scrutiny of the appointment process.

Third, there is an urgent need to undo the regressive amendments made to the asset disclosure provision in Section 44. The Lokpal must mandate a robust system of asset disclosures for public servants, their spouses and dependent children and these should be publicly available to enable people to participate in the fight against graft by making
informed complaints.

Fourth, much of the corruption that affects common people, especially the poor and marginalised, is in state and local government agencies. Therefore, it is important to have effective Lokayuktas set up at the state level, along the same lines as the Lokpal at the centre. The Parliamentary Standing Committee had examined the issue of desirability and constitutional validity of a single federal law providing for setting up of the Lokpal at the centre and Lokayuktas in states.13 It recommended a single statute to provide uniform standards across the country. As the Lokpal was being set up to meet commitments under the United Nations Convention against Corruption ratified by India, the committee opined that Article 253 of the Constitution14 empowered Parliament to enact a legislation which would be binding on states as well.

The L&L Bill, passed by the Lok Sabha in December 2011, provided for the constitution of Lokayuktas within one year in states, with their consent. In the Rajya Sabha, however, the bill was referred to a select committee, which in its report recommended that the legislation limit itself to requiring every state to set up a Lokayukta within a period of one year from the notification of the act, but gave the states freedom to determine the structure and powers of Lokayuktas.15 This formulation was passed by the Rajya Sabha and subsequently cleared by the Lok Sabha. As a result, there are widely divergent standards across different states, with some Lokayuktas only having recommendatory powers (Seetharaman 2018). Several states have not even constituted a Lokayukta. In order to tackle corruption, it is important that the L&L Act be adequately amended to provide for setting up of Lokayuktas along the same lines as the Lokpal.

Finally, the L&L Act was legislated to address the problem of the lack of an adequately independent and empowered body to look into allegations of corruption involving high-ranking government functionaries who can influence action in cases involving allegations of graft. However, Section 14 of the act, which lists the categories of public servants against whom the Lokpal would receive complaints of corruption, extends the definition to include functionaries of entities that are wholly or partly financed by the government with an annual income above ₹ 1 crore (DoPT 2016b), and of entities receiving donations from foreign sources in excess of 10 lakh per year. Covering such a large number of persons under the jurisdiction of the Lokpal is wholly undesirable as it would inundate the institution with complaints and prevent proper action in cases of big-ticket corruption.

Corruption involving high-ranking public officials is usually of a complex and intricate nature and, therefore, the Lokpal has been set up as a specialised agency with appropriate mechanisms to deal with it. Burdening the Lokpal with complaints against lakhs of persons associated with private, non-governmental bodies who do not exercise the kind of influence and power which high-ranking public functionaries do, will distract the agency and dilute its efficacy, thereby defeating the basic purpose for setting it up. The act, therefore, needs to be amended to remove such functionaries from the definition of public servants under the law.

Notes

1 http://164.100.24.219/BillsTexts/LSBillTexts/PassedBothHouses/134F_2011_....

2 Vineet Narain & Others v Union of India & Another (1997), Dr Subramanian Swamy v Director, Central Bureau of Investigation & Anr (WPC 38 OF 1997) with Centre for Public Interest Litigation v Union of India (WPC 21 OF 2004), Alok Verma v Union of India [WP(C) 1309 of 2018] along with in Common Cause v Union of India [WP (C) NO. 1315 of 2018].

3 http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/3450LS,%20lokpal....

4 The Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014, http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/190_2014_LS_Eng.PDF.

5 Common Cause v Union of India, writ Petition (Civil) No 245 of 2014.

6 Paras 16 and 17 of judgment in Writ Petition (Civil) No 245 of 2014, Common Cause v Union of India.

7 Common Cause a Registered Society v Ajay Mittal Conmt, Pet(C) No 714/2018 In W.P.(C) No 245/2014.

8 https://twitter.com/INCIndia/status/1106452436229603328.

9 https://www.sci.gov.in/supremecourt/2018/3618/3618_2018_Order_07-Mar-201....

10 Anjali Bhardwaj and Ors v UOI and Ors [WP(C) 436 of 2018] https://www.sci.gov.in/supremecourt/2018/15968/15968_2018_Order_15-Feb-2....

11 Section 13 of the Prevention of Corruption Act.

12 http://164.100.47.4/BillsTexts/LSBillTexts/PassedBothHouses/lokpal%2037%....

13 Chapter 7 of the Standing Committee Report on the Lokpal Bill, 2011 (Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice 2011).

14 Article 253 of the Constitution states, “Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”

15 Para 16.3 of the Report of the Select Committee of Rajya Sabha on the Lokpal and Lokayuktas Bill, 2011 (Rajya Sabha Secretariat 2012).

References

DoPT (2014): S.O. 409 (E) 15 February, Department of Personnel and Training, https://dopt.gov.in/sites/default/files/407_12_2014-AVD-IV-B-15022014.pdf.

— (2016a): Office Memorandum No.407/16/2016-AVD-IV(LP) 1 December, https://dopt.gov.in/sites/default/files/407_16_2016-AVD-IV-LP-01122016A.pdf.

— (2016b): S.O. 2154 (E) 20 June, https://dopt.gov.in/sites/default/files/SO-2154E-20062016-Hindi.pdf.

— (2018): Order No 407/02/2018-AVD-INTLM, 27 September, https://dopt.gov.in/sites/default/files/407_02_2018-AVD-IVLP-27092018.pdf.

Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (2011): Forty Eighth Report on the Lok Pal Bill, 9 December, http://164.100.47.5/committee_web/ReportFile/18/18/48_2016_6_12.pdf.

— (2015): Seventy Seventh Report, the Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014, http://164.100.47.5/committee_web/ReportFile/18/18/77_2018_10_11.pdf.

Langa, Mahesh (2019): ‘’Justice P C Ghose Appointed First Lokpal,’’ Hindu, 19 March, https://www.thehindu.com/news/national/justice-pc-ghose-appointed-first-....

Mandhani, Apoorva (2018): “Centre Took 45 Months to Call First Meeting of Lokpal Selection Committee: RTI Reveals,’’ Livelaw, 20 December, https://www.livelaw.in/centre-took-45-months-to-call-first-meeting-of-lo....

Ministry of Law and Justice (2014): “The Delhi Special Police Establishment (Amendment) Act, 2014,” 29 November, http://164.100.47.193/BillsPDFFiles/Notification/2014-122-gaz.pdf.

Rajya Sabha Secretariat (2012): Report of the Select Committee of Rajya Sabha on the Lokpal and Lokayuktas Bill, 2011, 23 November, http://164.100.47.5/committee_web/ReportFile/62/105/1_2018_7_11.pdf.

Seetharaman, G (2018): “Delay in Appointment of Lokpal & Lokayukta: Who Will Bell the Graft?,’’ Economic Times, 10 November, https://economictimes.indiatimes.com/news/politics-and-nation/why-there-....

World Bank (2012): “Only 43% of Countries Disclose Public Officials’ Financial Assets, Says World Bank,” 8 November, http://www.worldbank.org/en/news/press-release/2012/11/08/only-fourty-th....

Updated On : 6th May, 2019

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