The Supreme Court has for the past several months been constantly urging the government to complete the Lokpal appointment. However, the legal technicalities and lack of political-will led to the delay in the appointment of Lokpal which has ramifications for the governance in the country.
Why India needs Lokpal so badly?
India is recognized as a promising economy and expected to become an economic giant. Within a short span of time, India has become the most sought after country among investors across the world. Though India’s economy is booming, there is one major problem which is holding back all the progress and foreign investment. This is CORRUPTION.
Even though corruption is there in every other country, the way it is working and penetrating in our system cannot be seen elsewhere. Due to this, investors are now less interested in making investments since corruption causes unnecessary delay and raises the overall cost of doing business in the country.
What is the history of corruption in India?
- Weak system and outdated laws led to corruption. With not so effective system in the past, the problem grew like anything in recent years.
- ‘License Raj’, a period between 1947-1990 was the time when government intervention in private business was very high.
- According to the 1951 Industries Act, it is mandatory for all the industrial units to get licenses from the central government for business.
- Then the powers were transferred to state with the 1956 Industrial Policy Resolution. This developed a duplicate system and doing business in India turned out to be very complicated.
- The power was in the hands of government so government officials started taking the bribe.
- Also, the lack of transparency in the system further aggravated the corruption.
- In 1991 economic liberalization took place that had attracted many foreign investors and investments. But corruption affected their interest in doing business.
What are the current mechanisms against corruption in India?
Currently, there are 2 major reforms which are working against corruption in India. These are – the Prevention of Corruption Act in 1988 (amending the 1947 law) and the Right to Information Act (RTI) in 2005.
The Prevention of Corruption Act (PCA)
- This was the 1st major anti-corruption law that was originally passed in 1947.
- Violations under the PCA are handled by the Central Vigilance Commission (CVC) established in 1964.
- PCA was amended in 1988 to prevent corruption.
- Criminal liability got attached to the 1988 PCA.
- According to section 7 of this Act, any public official taking gratification other than legal remuneration as a motive or reward for doing anything is a crime.
- The main drawback of the Prevention of Corruption Act is that the punishments under it rarely happened.
- The Act is numb on the issues related to foreign corruption. So Indian citizens or corporation doing frauds in the international transaction cannot be penalized under this Act.
The Right to Information Act of 2005
- With the Right to Information Act, 2005 common people of India have been given the fundamental right to retrieve information with respect to the functioning of the government from the public authorities without giving a reason for the inquiry.
- The RTI is applicable in all the states except for Jammu and Kashmir because of political conflicts and it encompasses all the government bodies from central, state to local bodies as well as NGOs.
- For effective functioning, public information officers (PIOs) are appointed to receive applications for information at sub-divisional or sub-district level.
- Within 3 days PIO needs to respond.
- In case no information is provided then the citizen has complete right to appeal to a senior authority and the second appeal can be made to the Central Information Commission.
- The officer can be penalized for not providing the information if not falling under any rule of exception.
But this system has its own flaws:
- Firstly, right to obtain information has been given to a common citizen and getting information depends upon his will. It is possible that he might not be interested in this. Moreover, he has no power, confidence and knowledge of the legalities involve which certainly make this system weak.
- Secondly, the RTI has several exceptions making the Act ineffective in many cases.
- Thirdly the whistleblower gets no protection under the RTI. So no one dares to fight against powerful people. The whistleblower must feel safe and must be statutorily protected.
Since 2005 when the Act was made law no major scandal or corruption has been uncovered.
Click here to read about the recent RTI amendment issue.
What are the salient features of Lokpal?
It is a government institution that will inquire into allegations of corruption against certain public functionaries such as Union Ministers (PM & Council of Ministers) and MPs under the Prevention of Corruption Act 1988.
It is constituted under the Lokpal and Lokayuktas Act 2013 which provides for Lokpal at the Centre and Lokayuktas in states.
- PM with respect to functions such as National Security and Maintenance of public order.
- SC judges.
- Election Commission.
- All entities receiving donations from foreign sources in the context of FCRA (Foreign Contribution Regulation Act) below Rs 10 lakh per year.
- It comprises of a chairperson and up to 8 members.
- The chairperson and at least half of the members have to be current or former judges of the SC or Chief Justices of the HCs.
- The other members should have to be at least 25 years’ experience with respect to anti-corruption policy, vigilance, public administration, finance, and management.
Term: 5 years
- Lokpal can be appointed by President on the recommendation of Selection Committee consists of PM (Chairperson), Lok Sabha (LS) Speaker, Leader of Opposition (LoP) in LS, CJI or a judge nominated by him/her and one eminent jurist. *
- The selection committee has to choose members from the list of persons recommended by the Search committee consists of 8 members who are appointed by the Department of Personnel and Training (DoPT).
Lokpal members can be removed by the President after the inquiry by a committee consists of CJI and 2 senior most SC judges.
Power with respect to CBI:
Lokpal will have the power of superintendence and direction over any investigation agency including CBI for cases referred to them by Lokpal. Transfer of CBI officers who are investigating cases referred by Lokpal can be done only with the approval of Lokpal.
Attachment of Property:
Lokpal can attach and confiscate property acquired by corrupt means even while the prosecution is pending.
How Lokpal is better than current Anti-corruption mechanism?
- Demand for Lokpal has mounted as people are fed up with the current system against corruption. Despite all those reforms such as PCA and RTI, corruption is still increasing in India and the common man’s grievances are not heard properly. A further boost was given by Anna Hazare’s fast.
- These grievances resulted in the need of an independent investigating agency which is not controlled by politicians or bureaucrats.
- Since our system has no independent framework to fight against corruption = no one is afraid of indulging in corruption. Several legal cases of corruption take 30-35 years. The answer to all this may be the appointment of Lokpal.
- All the corruption cases of the Prevention of Corruption Act, 1988 will come under the jurisdiction of the Lokpal Act. Thus it has the function to inquire into allegations of corruption against public officials.
- The Lokpal will have its own autonomous machinery to inquire and investigate the corruption cases.
- As per the Act, a preliminary inquiry will be conducted within 30 days and completion of investigation must take place within 6 months although the extension of further six months can be given only after receiving a valid written reason. All the trials must be completed within a year that may extend to two years after providing a valid reason in writing.
- Unlike PCA, Lokpal does not require sanctions to form the government to investigate cases against a public servant and this is one of the best parts.
- The Lokpal also has the power to search and seize documents and it can even recommend the suspension of the accused. Even if the prosecution is pending then also there is a provision to confiscate the property acquired by corrupt means.
- In the present system, Directorate of prosecution comes under law ministry but with the Lokpal, he will come under the control of CBI director. The Central Vigilance Commission will recommend the appointment of the director of the prosecution. Director of the prosecution will work for two years.
- The major advantage of the Lokpal is it’s being independent as it is free from politicians, police officers, and bureaucrats. The entire system is quick so no delay in the results.
What are the concerns?
- The major point of concern is that all the cases of corruption in which high officials are involved go to the CBI. Lokpal is not going to completely control the administrative officers of the CBI who will investigate the corruption cases. This is regarded as the major drawback of Lokpal.
- No protection to the whistleblower.
- Five years of imprisonment for making a false complaint is arbitrary.
- Through an amendment in 2016, the government has done away with the statutory requirement of public disclosure of the assets of public servants’ spouses and dependent children.
- The vesting of the power of prior sanction with Lokpal has been almost nullified with amendments in Prevention of Corruption Act which strengthen the requirement to seek the government’s permission.
- Lokpal, being an administrative committee (part of the executive) = amounts to judiciary doing executive functions = violation of the separation of power provided under the Basic Structure of the Constitution.
- Judiciary is totally excluded from the ambit of Lokpal.
- Delay in the appointment of Lokpal due to the legal technicalities and lack of political will.
Why there was a delay in the appointment?
- Even though the Lokpal and Lokayukta Act of 2013 passed in 2014 itself, the Act was not implemented all these years since there was no Leader of Opposition (LoP) in the 16th Lok Sabha, thus causing a delay in the appointment. Note: LoP is a member of the select committee to appoint Lokpal.
- But the Supreme Court on April 2018, clarified that the Lokpal appointment process need not be stalled merely due to the absence of the LoP
- SC cited the sub-section (2) of the 2013 Act which makes it clear that an appointment of the chairperson or members of Lokpal will not be invalidated merely because of one of the members of the selection committee is missing.
- The SC maintained that the available members of the Lokpal Selection committee could be enough to recommend suitable persons to the President for the Lokpal appointment.
- In short, the Lokpal Act 2013 is a workable piece of legislation according to the Supreme Court.
- Moreover, the Parliamentary Standing Committee submitted its report in December 2015 which supports the amendment to replace the LoP with the single largest opposition party leader in Lok Sabha. However, this amendment is yet to be passed in the Parliament = delay.
- Also, setting up the Search Committee needs some groundwork since its members are drawn from different fields like the anti-corruption policy, public administration, law, banking, and insurance + half its members need to be women, backward class, minority and SC/ST candidates = delay.
- The government’s stand is that it only has a limited role with respect to the search committee.
- The government says that a search committee was already established in September 2018.
- However, the Search committee devises its own procedure for shortlisting suitable names for the selection.
- It further says that the central government can only provide such assistance as may be required by the search committee and that the search committee has not yet conveyed any date for its meeting = delay.
- However, even after the Search committee was formed, it has been handicapped due to the lack of office space, manpower, infrastructure and a secretariat = delay. Thus, the Supreme Court has asked the government to provide the necessary infrastructure for the search committee to convey its meetings and function properly.
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What is the way forward?
- It is true that the appointment of Lokpal requires a lot of groundwork regarding Selection and Search committee. However, it is the government duty to speed up this process and not mentioning it as a reason for delay by providing the required infrastructure.
- Recently, for the appointment to other posts such as CBI director and Central Vigilance Commissioner, a simple amendment was made to treat the leader of the single largest opposition party as the Leader of the Opposition (LoP). A similar amendment should also be made in the case of the selection committee to expedite the process of the formation of Lokpal, prevent corruption and improve governance in India.
- There are some flaws which need to be addressed like no protection to the whistleblower and five years of imprisonment for making a false complaint and government control through CBI.
- Every sector needs to be audited by Lokpal.
- The desired change can be brought by completely freeing the Lokpal and its investigating agencies.
- The Lokpal in isolation cannot work successfully. So along with this, the Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2011 (Citizens Charter Bill), Whistleblowers Protection Bill and Judicial Accountability Bill should have been passed.
- Thus the Lokpal is indeed a great step but its effective results are based on its effective implementation.
- Justice Pinaki Chandra Ghose was selected as the first Lokpal in March 2019 by the selection panel chaired by Prime Minister.
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