10564Jan Lokpal Bill version 2.2- can it rein in a corrupt government officer
- Apr 25, 2011Jan Lokpal Bill version 2.2- can it rein in a corrupt government officer ?
It transpires to me that the prevailing public perception on Jan Lokpal Bill subscribed to by countless Indians across and outside the country is, regrettably, not based upon their reading of the actual text of the Bill, rather sourced from the hearsays, speeches or media reports, which are in turn sourced from the propaganda stuff relentlessly dished out by ‘India Against Corruption’ website. Let me quote here a typical instance of such uncritical public perception, as was recently articulated by an erudite member of an All India Service- “Lokpal shall be an Institution which shall be having so wide ranging powers that it will not only get complaints directly from the people, will also get it enquired, will get FIRs registered if the complaints are found true, will seize the property if it is found to be one that has been procured through ill-gotten means, will also start disciplinary proceedings if a person is a government servant and will penalize the government servant as well and so on. Lokpal will be a Police officer, will be the appointing authority, be the Chief Vigilance Commissioner and what not’. Well, it seems the commentator feels apprehensive about centralization of too much of powers in a singe body, which is not desirable at all in a democracy based upon the principle of division of powers. Granting the legitimacy of his apprehension, I would like to ask a more fundamental question- do the various provisions made in Jan Lokpal Bill (version 2.2 available at www.indiaagainstcorruption.org ) corroborate at all his apprehension that Anna’s Lokpal is going to wield ‘wide ranging powers’? Rather I am severely critical of Anna’s Bill as it stands today from the opposite standpoint, that the Jan Lokpal envisaged therein has no power worth the name to conduct a full scale investigation into the allegation against any public servant- be he a Government servant, MP, Minister or a Judge- let alone seize the property of or penalize a guilty public servant. Yes, it seems the commentator was carried away by such eye-catching captions of certain Sections of the Bill like ‘Lokpal to be a deemed a police officer’ (Section 12), ‘Issue of Search Warrant’ (Section-9), ‘Powers in case of non-compliance of orders’ (Section 13), ‘Provisions relating to complaints and investigations’ (Section-18), ‘Recovery of loss to the Government’ (Section 19), ‘Punishment for offences’ (Section 19A), ‘Imposition of major and minor penalties’ (Section 21 B &C), and ‘Properties deemed to have been obtained through corrupt means’ (28 A).
But if anybody minutely and meticulously scan these provisions, and that too in conjunction with the rest of the Bill, he or she is sure to get baffled at the impotence of the envisaged Jan Lokpal to investigate the case of even a Desk Officer, who has been held ‘corrupt’ or guilty of ‘misconduct’ prima facie as per the preliminary enquiry by Lokpal himself. For instance, the subsection (vii) of Section 18 (Provisions relating to complaints and investigation) says that Lokpal may ‘direct through an interim order, appropriate authorities to take such action as is necessary, pending enquiry or investigation’ with a view to prevent ‘wastage or damage of public property or public revenue’ by the concerned public servant, or ‘to prevent further acts of misconduct by the public servant’ or 'to prevent the pubic servant from secreting the assets allegedly acquired by him by corrupt means’. Then the Bill, strangely enough, takes a U turn by privileging the concerned public authority with a peculiar discretion i.e ‘either to comply with or reject the recommendations of Lokpal’ ‘within 15 days of receipt of such an order’. In the event of rejection of the said order, which is most likely to happen, a nonplussed Lokpal shall have no option except, if ‘it feels important’, to ‘approach appropriate High Court for seeking appropriate directions to the public authority’. Needless to say, once the case moves on to High Court, there would inevitably follow an endless era of lingering uncertainty and misdirection. Thus, the promise dished out in Section 30 (Time limits) that ‘investigation into any allegation shall be completed within six months, and in any case, not more than one year, from the date of receipt of complaint’ gets automatically belied. If investigation couldn’t be started, let alone completed for the reasons stated above, does the other provision made in the Section-30 that ‘trial in any case filed by Lokpal should be completed within one year’ hold good? No and not at all.
Another instance of Lokpal being powerless, nay helpless in getting executed its own order against public servant proved corrupt by its investigation is evident from sub-section (vi) of Section 18. This provision says, “If during the course of investigation or enquiry into a complaint, the Lokpal feels that continuance of public servant in that position could adversely affect the course of investigation or enquiry or that the said public servant is likely to destroy or tamper with the evidence or influence the witnesses, the Lokpal may issue appropriate recommendations including transfer of that public servant from that position or his suspension, if he is a government servant”. Then, just in the self-same queer manner as mentioned above, the said provision continues, “The public authority shall either comply with or reject the recommendations of Lokpal” and in the event of rejection by the concerned public authority, the Lokpal shall have no option, except to “approach appropriate High Court for seeking appropriate directions to the public authority”. Under the circumstances, is there any guarantee that a fair investigation would ever be held and that too completed within one year, followed by a trial to be completed within the next year? No, not at all.
Still another instance of the above kind, noticeable in sub-section (iv) od Section 18 is worth referring to. This provision says, “If, during the course of a preliminary inquiry or investigation the Lokpal is prima facie satisfied that the allegation or grievance . . is likely to be sustained either wholly or partly, it may, through an interim order, recommend the public authority to stay the implementation or enforcement of the decision or action complained against, or to take such mandatory or preventive action . . . to prevent further harm from taking place". But just as in above two instances, the concerned public authority has been privileged with the peculiar discretion to ‘either comply with or reject the recommendations of Lokpal.’ And, as in the previous instances, here also the Lokpal at a fix shall have no option, except, ‘if it feels important’, to ‘approach appropriate High Court for seeking appropriate directions to the public authority’. As already mentioned, once the case moves on to the High Court, where there is no time-limit for disposal of any case, it may linger for years on end at that level, and even if disposed sooner or later by the High Court, it may thereafter, at the instance of either party, move on to the Supreme Court, where there is a veritable chance of the case hanging fire ad infinitum. Under the circumstances, is there an iota of possibility that the Lokpal as envisaged under Anna’s Bill would ever prove capable enough to compel a public authority to accept its interim order, let alone penalizing any of its officers? No, and not at all.
Above all, the sub-section (iii) of Section 18 offers a protective shield to the allegedly corrupt public servant and also the public authority he belongs to, saying that “the conduct of an investigation under this Act against a public servant in respect of any action shall not affect such action, or any power or duty of any other public servant to take further action with respect to any matter subject to the investigation”. Simply put, such a queer provision allows a corruptible regime together with its corrupt personnel to carry on their business as usual even if the investigation by Lokpal might have brought to the fore their acts of corruption deserving stern punishment.
Thus, Jan Lokpal as envisaged under Anna’s dream Bill is not a real tiger that can pounce upon anybody and everybody as and when warranted, but a cyber tiger that emits much sound and fury, simply to eye-wash the emotionally gullible Indians unfamiliar with the intricacies of law and administration.
I don’t know how one would react to the iconoclastic exposure that I made to some of the quintessential loopholes the Jan Lokpal Bill in its 2.2 avatar suffers from. But I in my heart of hearts believe that to put in place a really effective and foolproof Jan Lokpal Bill would be the starting point for ushering in of a corruption free India.
Chitta Behera, 25.4.2011