Jan Lokpal Bill: A Critique

By A. Faizur Rahman,

The Jan Lokpal Bill (JLB) imbroglio continues to intrigue the nation with Constitutional experts who deposed before the Standing Committee on September 24 & 25 warning that its provisions are unconstitutional and Anna Hazare threatening to gherao the houses of the Standing Committee members who do not support it, even urging voters not to re-elect such MPs. But the paradoxical aspect of this brouhaha is that most people who have taken up positions in support of the JLB haven’t read it. Mr. Kejriwal unwittingly conceded this in an interview; “When we conducted referendums on the JLB, we used to try and explain its contents to people. But they said they did not want to understand the details. They just wanted to put a mohar [stamp] on Anna” (http://www.thehindu.com/opinion/lead/article2412658.ece?homepage=true).

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This essay therefore seeks to analyse the JLB and question the adamantine belief of the Hazare camp that their Bill is the singular, unalterable law that would eradicate corruption in India.

The biggest shortcoming of the JLB, as pointed out by many experts, is that it has been drafted on the presumption that an “act of corruption” will be committed only by a “Government Servant” which includes “any judge.” This is evident from partial inclusion (in Sec. 23(3)) of “business entities” and the total exclusion of NGOs, media and other similar categories of institutions from the ambit of the JLB. And interestingly, section 23(1) proposes a maximum punishment of life imprisonment for corrupt public servants. Whereas as per Chapter VI titled “Accountability of Officers of Lokpal” the punishment for a Lokpal member found guilty of corruption is just “dismissal, removal or reduction in rank.” The bias is obvious.

Then there is the questionable selection process. Sec. 4(6) to (9) states that the Chairperson and members of the Lokpal shall be selected by a Selection Committee “from out of a short list prepared by the Search Committee” consisting of 10 members, five of whom will be selected by the Selection Committee and who will in turn co-opt the other five from the “civil society” through consensus. But as “civil society” itself is not defined, it leaves the door open for members of communal organisations to infiltrate into the Search Committee and infuse a sectarian or religious bias into the selection process. After all, many such faces were visible at the Ramlila Maidan during the Hazare fast.

Moreover, why should a high power Selection Committee (which consists of the PM, the leader of the opposition, judges of the Supreme Court and CJs of the High Courts, the CEC and CAG of India) be made dependent on a lesser ranked Committee which has not been secured against infiltration? It makes no sense. Therefore, the idea of a Search Committee is superfluous and must be dropped.

Another unwarranted clause is Sec. 17 which proposes that a 7-member Lokpal Bench will give permission to prosecute high functionaries such as the Prime Minister or any of his Council of Ministers, any judge of the SC or HC and any MP. The drafters of the JLB would be deluding themselves if they believe that Sec.17 would remove the impediments in prosecuting high ranking public servants. On the contrary, this section would further complicate the issue as it proposes seven persons in place of the present system of one person (such as the PM or the Chief Justice of India) for granting sanction to file an FIR against a Minister or a Judge. The question is; how does it simplify matters to bring in seven persons in place of one? A better remedy would be to do away with the system of seeking permission completely.

Apart from this, Sec. 4(4), which lists out persons not eligible to become Chairperson or member of the Lokpal, needs to be modified to exclude any person who is, or has been, a member, sympathiser, associate or supporter of any communal organisation or person. A clause should also be added to Sec. 11 to remove any Lokpal member including the Chairperson if he is found guilty of praising, supporting or sympathising with organisations or persons known for their communal bias. This is the only way of allaying the fears of a section of the society which suspects that Hazare and his team are backed by the communal outfits.

The JLB also contains some provisions that could make the Lokpal a heavy-handed parallel oligarchy. For instance, Sec. 7 grants to “Investigating Officers” and members of Lokpal the combined powers of a Police Officer, director of enforcement and a civil court. And as per Secs. 8 & 29(12) Lokpal has the powers “to approve interception and monitoring of messages” transmitted through telephones, internet or any other medium.

Furthermore, Sec 12, seeks to circumscribe the powers of the High Court under Art. 226 of our Constitution by stating that the HC cannot “ordinarily” stay the orders of the Lokpal and if it does, it will have to decide the case within two months, “else the stay would be deemed to have been vacated after two months and no further stay in that case could be granted.” According to H. M. Seervai (whose seminal work Constitutional Law of India led to the development of the “Basic structure doctrine”, that inhibits politically-motivated changes to the Constitution) “any law that took away or abridged the powers of the High Courts under Art.226 would be ultra vires, for the powers to make laws is subject to the provisions of the Constitution [as per Art.245].” Yet it is being claimed that all provisions of the JLB are within the legislative competence of Parliament.

The behemothic nature of the institution that the JLB seeks to create can also be gauged from its huge annual budget which Sec. 26(2) assures will be kept “less than ¼ % of the total revenues of the Government of India.” The total estimated revenue of India for 2011-12 (assuming “total revenues” refers to total revenue receipts) as projected in the last budget (http://indiabudget.nic.in/ub2011-12/bag/bag1.pdf) is Rs 7, 89, 892 crores. ¼ % of this works out to nearly 2000 crores which the Lokpal will have access to without “any administrative or financial sanction from any government agency.” An explanation from the drafters of the JLB is in order as to why such a huge amount of money is required for an institution which according to “Team Anna” is not going to be flooded with thousands of complaints.

Anna Hazare is certainly right in demanding a strong law against corruption. But he must also understand that in a democracy no law can be passed without proper debate, and therefore, it would be most unfair on his part to pressurise the MPs into voting only for the JLB. If indeed he and his team are confident of the genuineness of the JLB they must be willing to openly discuss it with those who challenge its constitutionality.

[A slightly different version of this article appeared in the DNA on September 27, 2011]

(A.Faizur Rahman is the secretary general of the Chennai-based Forum for the Promotion of Moderate Thought among Muslims. He may be reached at [email protected])