How Nine Governments Betrayed the Nation

While every political party in India has offered lip service to the idea of having an independent institution to probe allegations of corruption against members of the political executive and the top bureaucracy, the political class has dragged its feet whenever an effort has been made to make law in this regard. Politicians have tried to hoodwink the people into believing that despite their efforts, the law has not entered the statute book because of some legal tangles. Is this true? When the history of this legislation is written, many political leaders including some of India’s most powerful prime ministers will be judged harshly. Here is a glimpse:

Though the debate of corruption has been dominating political discourse in India over the last twelve months, apprehensions about corruption and its impact on governance were first heard over four decades ago. The Santhanam Committee, that initially examined the issue in the 1960s, expressed its concern about corruption and the lack of an effective mechanism to deal with the corrupt. Thereafter, the Administrative Reforms Commission (ARC) appointed in that decade was tasked to examine “the problems of redress of citizens’ grievances, keeping in mind the need for ensuring the highest standards of efficiency and integrity in the public services and also for making public administration responsive to the people”. Specifically, the commission was asked to examine the adequacy of the existing arrangements for redress of grievances and the need for introduction of any new machinery or special institution for the redress of grievances.

The ARC was so concerned about the growing public anger over corruption that it decided to put this issue on high priority. It felt that its recommendations vis-à-vis the establishment of an anti-corruption institution should not wait till it completed its labours in regard to the entire gamut of administrative reforms. Therefore, it submitted an interim report in 1966 titled “Problems of Redress of Citizens’ Grievances”, in which it recommended the setting up of a Lok Pal. The commission recommended that there should be a statutory machinery to enquire into complaints of corruption or injustice arising out of maladministration. The Congress Government headed by Indira Gandhi appeared to share the concerns of the ARC in regard to corruption and decided to implement the commission’s recommendations in right earnest. This led to the introduction of the first Lokpal and Lokayuktas Bill in the Lok Sabha in 1968. Mr.Y.B.Chavan, who introduced the first Lokpal and Lokayuktas Bill said this legislative measure had been thought of consequent to the recommendations of the ARC. However, the bill differed from the draft bill proposed by the ARC in that it sought to create a statutory machinery to enquire into complaints based on actions of all union public servants including ministers. The bill also sought to deal with maladministration, apart from corruption. Therefore, it empowered the Lokpal to enquire into actions of public servants which were actuated by “personal interest” or “improper or corrupt motives” or abuse of position. The Lokpal could also look into actions of public servants which smacked of “lack of integrity” or were “unjust, oppressive or discriminatory” or fell in the category of negligence or undue delay. The bill covered all ministers and public servants. The bill was considered by the Joint Committee of the two Houses and was passed by the Lok Sabha in 1969. While this Bill was pending in the Rajya Sabha, the Fourth Lok Sabha was dissolved and consequently the Bill lapsed. This bill fell by the wayside when Prime Minister Indira Gandhi sought early dissolution of the Lok Sabha and a fresh Lok Sabha Poll in 1971.

Indira Gandhi’s Congress was returned with a two-thirds majority in the Lok Sabha that year and the new government she formed after the election lost no time in re-introducing the bill, which had been passed by the previous Lok Sabha. The Statement of Objects and Reasons appended to the 1971 Bill noted that the bill, like the one introduced in 1968, differed from the draft bill proposed by the ARC in two major respects. However, even this bill was ill-fated. Although the term of this House was extended by year during the Emergency, it lapsed on the Lok Sabha’s dissolution in early 1977. The Indira Gandhi government could have no excuses for allowing this Bill to lapse because it could muster a two-thirds majority in the two Houses of Parliament and her government had introduced major constitutional changes which had upset the basic structure of the Constitution. Further, the Lok Sabha itself had an extended tenure.

Non-Congress Governments Give it a Shot

The non-Congress parties had their first shot at the creation of a strong anti-corruption institution after the Congress Party was trounced in the post-Emergency Lok Sabha Election held in March,1977. It was now the turn of Mr.Charan Singh, the then Home Minister to introduce a Lok Pal Bill on behalf of the Janata Party Government. That government made major changes in regard to the jurisdiction of Lokpal and the persons who came within this institution’s ambit. Mr. Charan Singh had this to say in regard to past initiatives and about the new thinking within the government in regard to constitution of such an ombudsman: “The matter has been re-examined having regard to the recommendations of the ARC, the provisions of the 1971 Bill and other laws on the subject enacted in the various States from time to time and the experience of the functioning of such institutions in the states where they have been set up. In the light of this re-examination, it is proposed to alter the scheme of the Lokpal as incorporated in the 1971 bill in material respects for making the institution of Lokpal an effective instrument to combat the problem posed by corruption at higher political levels. Under the scheme now proposed, the jurisdiction of Lokpal will cover any complaint of misconduct (pertaining to a period not exceeding five years prior to the date of the complaint) against a person who is or has been a public man as defined in clause2(g) of the bill. The prime minister, members of parliament and chief ministers of states are being brought within the purview of the Lokpal”.

In the Statement of Objects and Reasons attached to this bill, the minister said: “Allegations against civil servants will not come within the purview of the lokpal; and grievances, as distinct from allegations of misconduct, will be excluded from his jurisdiction”. Therefore, the Janata Party Government wanted the focus to be entirely on persons holding political offices like that prime minister, union ministers, chief ministers and members of parliament. Civil servants were excluded. However, Mr.Charan Singh ensured that the Lokpal had direct administrative control and an independent investigating machinery to assist him in the discharge of his functions. But, this bill too was doomed. It was also referred to a Joint Committee of Parliament, which reported back to the House in July, 1978 but even as the bill was under consideration, the Lok Sabha was dissolved and it lapsed.

After the Janata Party squandered the opportunity given by the people, Indira Gandhi returned to power with a thumping majority in 1980 but chose not to introduce this bill again. Despite her formidable strength in the two Houses of Parliament, she took no initiative to establish the Lok Pal. The Congress Party resumed its dalliance with the Lok Pal legislation soon after Rajiv Gandhi took over the reins when it went through the motions of introducing a Lok Pal Bill in 1985. At that stage, the Rajiv Gandhi Government was still in its honeymoon phase with the people and Mr.Gandhi was the “Mr.Clean” who was promising to cleanse the system and to finish the “power brokers” who he said were riding on the backs of poor people. Like his mother, Rajiv Gandhi had all the political strength to push through a tough anti-corruption law through parliament. In the election held in December, 1984, the Congress Party had inflicted a crushing defeat on its opponents and had bagged 410 seats in the Lok Sabha. Mr.Gandhi had such political and parliamentary strength that he could have passed this law without even a whisper of protest. But, he too backed out after making some tall claims. “Wisdom” soon dawned on the government that it was facilitating the creation of an institution that could critically examine its functioning, and therefore, without much ado, the government quietly withdrew the Bill!

Thereafter, a series of non-Congress governments tried in vain to bring in this law. Introducing yet another version of this bill in the Lok Sabha in 1989, Mr.Dinesh Goswami, the Law Minister in the V.P.Singh Government referred to the chequered history of the Lokpal Bill and said having studied the interim report of the ARC submitted in 1966 and all the four bills which were introduced in the parliament earlier, the government has come to the conclusion that such legislation for constituting the institution of Lokpal is imperative to combat the problem of corruption at higher political levels. The government was bringing this law, he said, because in the interest of democracy, it should be the endeavour of every public functionary at top political levels to maintain high standards of public morality. But the bill lapsed with the dissolution of the Ninth Lok Sabha.

The Deve Gowda Government brought a bill in September,1996, which too lapsed with the dissolution of the Eleventh Lok Sabha. The Atal Behari Vajpayee Government introduced the bill in August ,1998 and this too lapsed with the dissolution of the Twelfth Lok Sabha. The Atal Behari Vajyapee returned to power after the Lok Sabha Poll in 1999 and a fresh attempt was made by his government in the Thirteenth Lok Sabha in 2001. This Bill, the government said, was meant to enable citizens “to have recourse to a convenient and effective forum for determination of complaints and thereby save them from pursuing their remedies through the process of courts”. The National Commission to Review the working of the Constitution ( NCRWC) , which submitted its report thereafter was very keen that parliament pass this law. It said in para 6.21.2 of its report that “the Lok Pal Bill needs to be expeditiously considered and passed by Parliament. If possible, it may be further strengthened by providing that its findings should be final and form the basis for action by government. The Commission thinks that a start should immediately be made on the basis of the Bill. Let experience be gained of working a high level body to enforce standards of rectitude and propriety in the conduct of public affairs”. However, the Lokpal Bill, 2001 too was ill-fated.

Public Pressure Brings Lokpal Into focus Yet Again

The Congress-led United Progressive alliance came to power at the centre in 2004. It however steered clear of the Lokpal idea in its first term and in the initial phase in its second term. However, a public agitation launched by social activist Anna Hazare and others shook the government out of its slumber. In order to pacify the agitationists, who wanted a strong Lokpal, the union government constituted a joint drafting committee in april, 2011. The government thereafter introduced a the Lokpal Bill, 2011 in August, 2011.

This Bill was referred to the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on August 8, 2011, followed by a parliamentary debate. A “sense of the House” was communicated to the Standing Committee on the basis of discussions in the two Houses. The committee, after extensive discussion with all stakeholders, suggested several amendments and recommended that the Lokpal at the centre and Lokayukta in the States be conferred constitutional status. The government withdrew the bill introdced in August, 2011 and brought a fresh Lokpal and Lokayuktas Bill in December, 2011, after considering the report of the standing committee.

In the Statement of Objects and Reasons appended to this bill, the government claimed that India was “committed to pursue the policy of Zero Tolerance against Corruption” after it ratified the United Nations Convention Against Corruption May 9, 2011. This Convention imposes a number of obligations, some mandatory, some recommendatory and some optional on the Member States. The Convention, inter alia, envisages that State Parties ensure measures in the domestic law for criminalization of offences relating to bribery and put in place an effective mechanism for its enforcement. The obligations of the Convention, with reference to India, have come into force with effect from June 8, 2011.

“As a policy of Zero tolerance against Corruption, the Bill seeks to establish in the country, a more effective mechanism to receive complaints relating to allegations of corruption against public servants including Ministers; MPs, Chief Ministers, Members of Legislative Assemblies and public servants and to inquire into them and take follow up actions. The bodies, namely, Lokpal and Lokayuktas which are being set up for the purpose will be constitutional bodies. The setting up of these bodies will further strengthen the existing legal and institutional mechanism thereby facilitating a more effective implementation of some of the obligations under the aforesaid Convention”, the statement said.

When this bill came up for discussion and voting in the Lok Sabha in December, 2011, the House passed the bill but rejected the constitutional amendment that would accord the Lokpal and Lokayukta constitutional status. When it went to the Rajya Sabha, the whole process was stymied by some who MPs moved dozens of amendments, while some others warned their parliamentary colleagues that they were establishing an institution that would jeopardize their political careers. In the end, the House was adjourned sine die because of the prevailing pandemonium. As a result, it is still hanging fire in the Upper House.

What Lessons Do We Draw?

What lessons can we draw from this? Undoubtedly, all the major players in the political field are guilty of dragging their feet in regard to the Lok Pal legislation. But, certainly, some political leaders and parties are far more guilty than the others. Till 2011, the Lok Pal Bill had been introduced eight times in the Lok Sabha. On seven occasions, it lapsed because of the dissolution of the House. On one occasion it was withdrawn by the government. Now the present government has introduced this bill twice. It brought a bill in August, 2011, which it withdrew and introduced a fresh one in December, 2011.

Under the Constitution, the government can introduce every bill, except money bills, in either House of Parliament. But the life of the bills varies from House to House. The Rajya Sabha is a permanent House. All members have a fixed tenure of six years but members retire in phases with one-third retiring every two years. These vacancies are filled through biennial elections to the Upper House. Therefore, this House is never subject to dissolution. Hence, a bill introduced in this House can have a longer shelf life. The government can introduce a bill in this House, wait for the opportune moment and push it through in the Rajya Sabha and thereafter in the Lok Sabha. So long as it is pending in the Rajya Sabha, it does not die with the dissolution of the Lok Sabha.

But, the Lok Sabha is subject to dissolution. A bill introduced in that House faces sudden death when the House is dissolved or when a bill passed by it is pending in the Rajya Sabha. We can gauge the intentions of the political class when we realize that the Lok Pal Bill, which lapsed on seven occasions, has never been introduced in the Rajya Sabha.

The need for a strong anti-corruption institution like the Lok Pal was first mooted in parliament in 1963 when Jawaharlal Nehru was the prime minister. The first bill was introduced in 1968 when Indira Gandhi was the prime minister and passed by the Lok Sabha in 1969, but the government did not ensure its passage in the Rajya Sabha till the dissolution of the Lok Sabha in early1971. What happened thereafter is even stranger. Indira Gandhi came back with a thumping majority in 1971 and quickly re-introduced the Lokpal and Lokayuktas Bill. This government imposed the dreaded Emergency, used its brute parliamentary majority to turn the Constitution on its head and even extended the life of the lok Sabha, but it did not ensure the passage of the Lokpal Bill!

Another prime minister who had humongous parliamentary strength was Rajiv Gandhi. He had more power in parliament than Jawaharlal Nehru and Indira Gandhi. Yet, he lacked the courage to establish a Lok Pal and withdrew the bill which he introduced.

Among the non-Congress governments, the Morarji Desai government had the requisite strength in the Lok Sabha to begin with, but mid-way through its term it fell victim to internal desertions and collapsed and the Lok Pal bill went down with it. The Atal Behari Vajpayee government of 1999-2004 on the other hand, lasted a full term but failed to bring in this law after holding out much promise.

The ball is now again in the Congress Party’s court. The party seemed to develop cold feet when MPs in the Rajya Sabha moved amendments to the Bill passed by the lower House. A standard explanation that the party now offers is that it does not on its own command a majority in parliament and is therefore at the mercy of its coalition partners.

This may be true. But, can we forget history? Would we be discussing the Lok Pal bill in 2012 if the Congress Party had shown the courage to use its brute majority between 1971-77 and 1980-89 to establish this institution?

Should the Prime Minister be insulated from investigations by the Ombudsman?

There has been an intense debate over several decades on whether the national ombudsman should have the power to investigate corruption charges against the prime minister. Generally speaking, the Congress Party has been averse to the idea. It has felt that if the prime minister, who is the de facto chief executive, is placed within the jurisdiction of the anticorruption agency, it will weaken the office of prime minister. Non-Congress parties however have felt that the political executive would not be fully accountable if the prime minister were to be kept out. Hence, the Lokpal Bills introduced by non-Congress governments have sought to bring the prime minister within the ambit of the law.

The Lokpal Bill, 1977, which was the first such legislation to be drafted by a non-Congress government, sought to deal with acts of corruption committed by a “public man”. A “public man” was described as a person who is or has been (i) a member (including a deputy minister) of the council of ministers of the union; (ii) a member of either House of Parliament; (iii) the chief minister of a state; (iv) a member (including a deputy minister) of the council of ministers for a union territory; (v) a member of the legislative assembly for any union territory; (vi) a member of the executive council under the Delhi Adminstration Act,1966; (vii) the Mayor of a Municipal Corporation in any union territory; (h) “public servant” shall have the same meaning as in section(2) 1 of the Indian Penal Code.

The bill introduced in 1989 by yet another non-Congress government headed by Mr.V.P.Singh, replaced the ‘public man” of 1977 with “public functionary”. It said A public functionary means a person who holds, or has held, the office of the prime minster, deputy primeminister, minister, minister of state or deputy minister of the union.

It proposed that jurisdiction of Lokpal should cover the complaint of corruption within the meaning of the Prevention of Corruption Act,1988 against the council of ministers including the prime minister. It also provided that in case of complaints against a minister, the competent authority should be the prime minister to decide about the action on the recommendations of the Lokpal and in the case of the prime minister, it would be left to the House of the People as ultimately that political functionary (the prime minister) is responsible to the people through their representatives. In other words, while this bill gave the ombudsman to investigate the actions of the prime minister and submit a report, it felt that the House of the People should have the power to decide on the follow-up action.

The 1996 bill- introducved by the United Front Government headed by Mr.H.D.Deve Gowda also brought the Prime Minister, ministers, Members of Parliament within the ambit of the term “public functionary”.

The Lokpal Bill introduced by the Bharatiya Janata Party(BJP)-led coalition government in 1998 and the BJP-led National Democratic Alliance Government headed by Mr.Atal Behari Vajpayee in 2001 also brought the prime minister within the Lokpal’s ambit. It said the Lokpal would have powers to probe allegations against “public functionaries”. A “public functionary” was described as a person (i) who holds or has held the office of prime minister, minister, minister of state or deputy minister, in the union or (ii) is or has been a member of either House of Parliament. However, the power to investigate the prime minister was not an omnibus power. The bill said the Lokpal shall not shall not inquire into any matter involved in, or arising from, or connected with, any such allegation against the prime minister “in so far as it relates to national security and maintenance of public order”.

The Lokpal and Lokayuktas Bill, 2011 introduced by the Congress-led United Progressive Alliance Government headed by Mr.Manmohan Singh is the first Lokpal law brought by the Congress in which the prime minister is placed within the ombudsman’s jurisdiction. Though the Congress Party was opposed to the idea, it gave in tio the demand that the prime minister be made accountable, because of a nation-wide agitation led by social activist Anna Hazare. The bill said it was a law to provide for the establishment of a body of Lokpal for the Union and Lokayukta for States to inquire into allegations of corruption against public servants and for matters connected therewith or incidental thereto. Clauses (a) to (h) of sub-section 1 of Section 14 of the bill described a “public servant" and this included “any person who is or has been a prime minister”.

It said the jurisdiction of the Lokpal would include the prime minister, ministers, members of parliament, groups A,B,C,D officers and officials of the central government. But, the bill circumscribed the powers of the Lokpal vis-à-vis the prime minister to such an extent that it left little scope for any worthwhile probe into the conduct of the prime minister. It said: “However, the Lokpal shall not inquire into any matter involved in, or arising from, or connected with, any such allegation of corruption against the prime minister in so far as it relates to foreign affairs, international relations, external and internal security, public order, atomic energy and space; unless a full Bench of the Lokpal considers the initiation of inquiry and at least three-fourth (later revised to two-third) of its members approves such inquiry; and unless the inquiry, if any, considered necessary by the Lokpal, is held in camera”.

This means that the Lokpal cannot enquire into decisions taken by the prime minister in matters relating to ‘internal and external security”. “public order” and “international relations”. However, most of the big ticket decisions taken by the prime minister fall in any of these categories. For example, the Swedish arms manufacturer, Bofors paid commissions when it sold field guns to India in the mid-1980s. The then prime minister, Rajiv Gandhi had taken the final call on buying equipment from Bofors, and this led to a nation-wide agitation against corruption. It resulted in the electoral defeat of Rajiv Gandhi in 1989 and an investigation by the Central Bureau of investigation. If something akin to the 2011 bill were to be in place at that time, the Lokpal would be barred from probing the bofors gun deal because it concerned ‘external security” and “international relations”.

However, the Congress Party is not alone in having reservations about bringing the prime minister with the prview of the Lokpal. The National Commission to Review the Working of the Constitution (NCRWC), which went into the working of the constitution since it was adopted in 1950, was also of the view that the prime minister should be kept out of the purview of the Lokpal. In para 6.21.1 of its report, it said; “An agency like the Lok Pal would help forces working for a cleaner government. The most recent Bill introduced in Parliament is the Lok Pal Bill 2001, introduced in the Lok Sabha on 14 August, 2001. It follows the pattern of the 1998 Bill especially insofar as it includes the Prime Minister within its purview. The Commission has carefully examined the point relating to the inclusion of the Prime Minister within the jurisdiction of Lok Pal. In the parliamentary system, the Prime Minister occupies a unique position. He is the kingpin of the entire governmental structure. It is his personality, his image and his leadership that drives the government and, indeed, other major institutions of the State. Major threats of destabilisation and subversion of democratic governments cannot be ignored. In this context, the Prime Minister as the symbol of the stability and continuity of the regime, should not be exposed to the risks of well orchestrated and well planned attempts to malign his image and reputation on which the entire functioning of government depends. The entire structure can be undermined by malicious character assassination. The Commission recommends that the Constitution should provide for appointment of Lok Pal. It also recommends that the Prime Minister should be kept out of the purview of the Lok Pal”.

Another national commission that wanted the prime minister to be kept out of the prview of the Lokpal was the second Administrative Reforms Commission (Second ARC). This commission said in its 2007 report that the ombudsman should be a constitutional authority. “The Constitution should be amended to provide for a national Ombudsman called the Rashtriya Lokayukta. The role and jurisdiction of the Rashtriya Lokayukta should be defined in the Constitution while the composition, mode of appointment and other details can be decided by Parliament through legislation. The jurisdiction of Rashtriya Lokayukta should extend to Ministers (except the Prime Minister), Chief Ministers, and Members of Parliament. In case the enquiry establishes the involvement of any other public official, it can enquire against such public servants. The Prime Minister should be kept out of the jurisdiction of the Rashtriya Lokayukta”.

Tossed around by Nine Governments, Five Parliamentary Committees

It is often said that the best way to put off a decision is to constitute a committee to examine the issue. It is also said that the British perfected this idea. Democratic India has borrowed many ideas from Britain but has rarely executed them with the thoroughness that is attributed to the British. But, constituting committees to delay decision-making, is one idea which is implemented with utmost diligence in India. Probably the Lokpal controversy offers the best example of dilly-dallying via committees. Thus far, nine governments have introduced bills in parliament to appoint a Lokpal and on five of these occasions, parliament has felt the need to constitute a Joint Committee of the two Houses to examine the bill.

The first Lokpal Bill, introduced in the Lok Sabha in 1968 was referred to the Joint Committee of Parliament. After the committee submitted its report, the bill was passed by Lok Sabha in 1969 and transmitted to the Upper House. When it was pending in the Rajya Sabha, the Lok Sabha was dissolved and the bill lapsed. Under the Constitution, a bill in transit from the Lok Sabha to the Rajya Sabha lapses if the former is dissolved before the latter House passes it. Because of this provision, the Lokpal Bill has lapsed eight times until now.

In 1977, the Lokpal Bill was once again referred to a Joint Committee of Parliament. The committee reported back to Parliament in July, 1978. When the bill, as reported back by the Joint Committee, was under consideration, there was considerable turmoil within the ruling Janata Party leading to the dissolution of the Lok Sabha.

Yet another Lopal Bill was introduced in September, 1996 in the Eleventh Lok Sabha. It was referred to the Standing Committee on Home Affairs. The committee reported back on May 9, 1997, but the Lok Sabha was dissolved before the government could finalise its response to the report of the Standing Committee.

The Atal Behari Vajpayee Government introduced the Lokpal Bill in Aug, 1998 in the Twelfth Lok Sabha. It was referred to the Standing Committee on Home Affairs, which reported back in February, 1999. However, before the government could formalize its response to the committee’s recommendations and take the next step, the Lok Sabha was dissolved.

The Lokpal Bill, introduced by the United Progressive Alliance government headed by Mr.Manmohan Singh in August 2011 was also referred to the Department Related Standing Committee on Personnel, Public Grievances, Law and Justice. The bill was withdrawn by the government and a fresh Lok Pal and Lokayuktas Bill, 2011 and the Constitution (116 Amendment) Bill, 2011 was introduced by the government in its place after the committee submitted its report.

Who is the “Competent Authority” Who Can Act on the Lokpal’s Report?

Under various Lokpal legislations, the law makers are called upon to identify the “competent authority” who is to take note of the Lokpal’s findings and initiate action on the same. In the case of members of the Union Council of Ministers, the competent authority is the prime minister. But, who is the “competent authority” when the matter concerns the prime minister? The 2001 Bill said “competent authority” in relation to (i) the prime minister, means the house of the people; (ii) a member of the council of ministers, other than the prime minister, means the prime minister; and (iii) a Member of Parliament, other than a minister, means the Council of States in case of a member of that Council or the House of the People in case of a member of that House. Further, this bill said that if a complaint is proved to its satisfaction, the Lokpal should communicate its findings to: ‘The Speaker, in case of the prime minister or a member of the House of the People, and the Chairman, Council of States, in the case of a member of that Council ‘. The two presiding officers were required to place the reports before their respective Houses “as soon as may be”. Thereafter, “the competent authority shall examine the report forwarded to it under sub section (1) and communicate to the Lokpal, within a period of ninety days from the date of receipt of the report, the action taken or proposed to be taken on the basis of the report”. In the 2011 bill also, the “competent authority” in relation to the prime minister is the House of the People.

Method of Selection of Lokpal and Composition?

The method of appointment of the Lokpal has been a matter of much controversy over the last four decades because of diverse and often conflicting opinion in this regard.

The first Lokpal Bill introduced in 1968 said the Lokpal would be appointed by the President after consultation with the Chief Justice of India and the Leader of the Opposition in the House of the People.

The 1977 bill said the Lokpal would be appointed in consultation with the Chief Justice of India, the Chairman of the Council of States and the Speaker of the House of the People. The Leader of the Opposition in the House of the People was kept out.

In1989, the bill said the Lokpal shall consist of a Chairman and two other members. Section (3) said the President shall, “after consultation with the Chief Justice of India” appoint, by warrant under his hand and seal, persons who are or have been judges of the Supreme Court as the Chairman and members of the Lokpal. In other words, the mode of selection here was simple. The President was required to consult just the Chief Justice of India and none else. It said : “The present bill seeks to setup the institution of Lokpal consisting of Chairman and two members. Only persons who are or have been judges of the Supreme Court would be eligible for appointment to this body. This has been proposed to create a greater assurance of justice and fair play in the minds of all”.

The 1996 bill suggested a thee member Lokpal – Chairman and two members – and the selection committee to choose them was to comprise of the Prime Minister, the Speaker of the Lok Sabha, Deputy Chairman, Rajya Sabha, the Leaders of the Opposition in the Lok Sabha and Rajya Sabha, Minister in charge of Home Affairs and the Minister of State in the Ministry of Personnel.

The 2001 bill however preferred a larger selection committee. It said the Lokpal should be selected by a committee headed by the Vice-President and including the Prime Minister, the Home Minister, Leader of the House other than the house in which the Prime Minister is a member, Speaker of the Lok Sabha, Leader of Opposition in the Lok Sabha, Leader of the Opposition in the Rajya Sabha.

The Second ARC, in its report said the ombudsman, which it called the Rashtriya Lokayukta, should consist of a serving or retired Judge of the Supreme Court as the Chairperson, an eminent jurist as Member and the Central Vigilance Commissioner as the ex-officio Member. The Chairperson and members of the Rashtriya Lokayukta should be selected by a Committee consisting of the Vice President, the Prime Minister, the Leader of the Opposition, the Speaker of the Lok Sabha and the Chief Justice of India. The Chairperson and Member should be appointed for only one term of three years and they should not hold any public office later, except if they can become the Chief Justice of India.

This commission also favoured strong lokayuktas at the state level to probe allegations of corruption. It said the Constitution should make it obligatory on the part of state governments to establish the institution of Lokayukta and stipulate the general principles about its structure, power and functions. “The Lokayukta should be a multi-member body consisting of a judicial Member in the Chair, an eminent jurist or eminent administrator as Member and the head of the State Vigilance Commission as ex-officio Member. The Chairperson and member of the Lokayukta should be selected by a Committee of the Chief Minister, Chief Justice of the High Court and the Leader of the Opposition in the Legislative Assembly. There is no need to have an Uplokayukta (deputy Lokayukta). The Chairperson and members of the Lokayukta should be appointed strictly for one term only and they should not hold any public office under government thereafter”.

The 2011 bill, as passed by the Lok Sabha, also opted for a Lokpal and Lokayukta model. It said the Lokpal shold be selected by a committee consisting of the Prime Minister, the Speaker if the House of the People, the Leader of the Opposition in the House of the People, the Chief Justice of India or a judge of the court nominated by him, one eminent jurist nominated by the president. The selection committee could appoint a search committee to assist it.

As regards composition of the Lokpal, initially governments preferred it to be three member bodies (Chairman and two members). The 2001 bill also preferred a three member body - Chairperson and two members. However, in the year 2011, there was a quantrum jump in the size of the institution. The Lokpal and Lokayukta Bill, as passed by the Lok Sabha on December 27, 2011 provides for a Lokpal that comprises of a Chairman and up to eight members, fifty per cent of whom shall be judicial members.

Further, it provides for the first time reservation of fifty percent seats in the Lokpal for Schuduled Castes, Schedul;ed Tribes, Other Backward Classes, minorities and women.

This is a major departure from earlier bills, which never provided for non-judicial members or reservations of any kind for any category of citizens.

Conditions of Service

If there is one common thread running through all the Lokpal legislations, it is the one pertaining to conditions of service of the Chairman and members of this institution. All bills have sought to ensure that the Lokpal is a truly independent authority and have stipulated that the conditions of service of the Chairman and Members shall be akin to that of the Chief Justice of India and judges of the Supreme Court respectively. For example, the 1989 Bill said : “To enable the persons constituting the Lokpal to perform their functions with highest objectivity and to ensure their independence, it is also provided that their salary, other conditions of service including removal from office, shall be those of the Chief Justice of India in the case of the Chairman and judges of the Supreme Court in the case of other members”. Though there are minor variations in bills pertaining to the procedure for removal of the Lokpal, by and large the attempt appears to be to strengthen the institution and ensure its independence. The Lokpal and Lokayuktas Bill, 2011, passed by the Lok Sabha, states that the Chairman or members of the lokpal can be removed from office by the president, if on a presidential reference, the Supreme Court suggests such a course of action.

Stern Action Against False and Frivolous Complainants

While empowering the people to complain against ministers and public serants, successive governments have been wary of false and frivolous complaints. Some have sought to impose harsh punishment while some have peferred lighter punishments to those who make frivolous complaints before the Lokpal. Here is a look:

Section 22(1) of 1989 bill said “every person who willfully or maliciously makes any complaint which he knows or has reason to believe tobe false under this act shall be punished with imprisonment for a term which may extend to one year and shall also be liable to fine which may extend to three thousand rupees”.

The 2001 bill said if complaint is false and filed with “malafide intention”, Lokpal can sentence the complaintant to imprisonment which shall not be less than one year and which may extend upto three years, and also to fine which may extend upto 50,000 rupees.However, it balanced this out by gioving an incentive to those who brought correct charges against public functionaries. It gave the Lokpal the power to “reward” a complainant or compensate a complainant “if allegations substantiated either wholly or partly”.

Section 46 of the Lokpal and Lokayuktas Bill, 2011 prescribes imprisonment for a maximum term of one year and a fine of up to Rs one lakh. However, this does not apply to complaints made in good faith.

How Inflation has hit India’s Anti-Corruption Ombudsman

When it comes to fighting corruption, it does not come cheap. Or so it seems. The cost of having an ombudsman has risen astronomically over the years. The financial memorandum appended to the first Lokpal Bill introduced in 1968 said the bill provides for appointment of a lokpal and one or two persons to be known as lokayoktas. While prescribing the salaries and allowances, regard shall be had to the salaries, allowances and the other conditions of service of the chief justice of India and and judges of the supreme court. The Lokpal shall also have the necessary staff. The new institution, it was estimated, would entail a non-recurring expenditre of Rs one lakh and a recurring expenditure of rs nine lakhs a year.

The Lokpal Bill introduced in the Lok Sabha in 1977 estimated that the institution would entail a non-recurring expenditure of Rs 2 lakhs and a recurring expenditure of Rs 20 lakhs a year. Further, it said that in case it becomes necessary to construct a building to house the establishment of thelokpal, additional expenditure of a non-recurring nature of the order of Rs 25 lakhs will also be involved. The 1989 bill estimated the cost of lokpal as involving a non-recurring expenditure of Rs 7.5 lakhs and a recurring expenditure of Rs 35 lakhs per year. In case it becomes necessary to construct a building to house the intitution of the lokpal, “additional expenditure of a non-recurring nature of the order of Rs 75 lakhs may also be necessary”. When the 2001 bill was moved in parliament, the cost of Lokpal had risen substantially to Rs 75 lakhs by way of non-recurring expenditure and a recurring expenditure of Rs 1.50 crore. The cost of constructing a building for Lokpal was estimated to be Rs 1.50 crore.

The cost of Lokpal however ballooned to hundreds of crores of rupees by the time the bill was introduced in parliament in 2011. the Financial Memorandum attached to the Lokpal and Lokayukta Bill, 2011 said : “At this stage, it is not possible to give precise details of the expenditure to be incurred on the Lokpal. It is, however, expected that the Bill, if enacted and brought into operation, would involve a non-recurring expenditure of one hundred crores of rupees and a recurring expenditure of two hundred crores of rupees in a financial year. In case it becomes necessary to construct a building to house the establishment of the Lokpal, additional expenditure of a non-recurring nature of the order four hundred crores of rupees may also be involved”.

This sum however did not include the expenditure involved in constituting Lokayuktas in every state. The Union Government shied away from estimating this expenditure. The Financial Memorandum just said: “Part Ill of the 2011 Bill provides for constitution of Lokayukta in every state. Clause 74 of the bill provides that the administrative expenses of the Lokayukta, including all salaries, allowances and pensions payable to or in respect of the Chairperson, Members or secretary or other officers or staff of the Lokayukta, shall be charged upon the Consolidated Fund of the State and any fees or other moneys taken by the Lokayukta shall form part of that Fund. The expenditure in this regard shall be borne by the respective State Govenments. The expenditure in this regard may differ from state to state”.

Despite the reluctance of the government to estimate the cost of having lokayuktas in every state, it is certain that these institutions will cost the exchequer hundreds of crores of rupees every year. But, even at this cost, will we eventually have these institutions at the federal level and in the states? That is the moot question................

Published Date : 17^th January 2012