Jan Lokpal Bill: A critique

The Jan Lokpal Bill imbroglio rages on with constitutional experts who deposed before the Standing Committee on September 23 and 24 warning that its provisions are unconstitutional.

But most people who support the JLB haven’t read it. This essay analyses the JLB and questions Team Anna’s adamantine belief that their bill is the singular, unalterable law that would eradicate corruption in India.

The JLB’s biggest shortcoming 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 Lokpal’s ambit. Section 23(1) proposes a maximum punishment of life imprisonment for corrupt public servants, while according to 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.”

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.

Moreover, why should a high-power selection committee (which consists of the PM, the leader of the opposition, Supreme Court and high court judges, the CEC and CAG of India) be made dependent on  a lesser-ranked committee that has not been secured against infiltration? It makes no sense.

Another unwarranted clause is Sec 17, which proposes that a seven-member Lokpal Bench will give permission to prosecute high functionaries like the PM, ministers, judges and MPs. The drafters would be deluding themselves if they believe that Sec 17 would remove the impediments in prosecuting high ranking public servants. On the contrary, this would further complicate the issue as it proposes seven people in place of one person (like the PM or the CJI) to grant sanction to file an FIR against a minister or a judge. How does it simplify matters to bring in seven people in place of one?

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.  

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 HM 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 HCs 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 claimed that all provisions of the JLB are within Parliament’s legislative competence.

The 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 0.25% of the total revenues of the Indian government.” The total estimated revenue of India for 2011-12 as projected in the last budget is Rs7,89,892 crore and 0.25 % of this is nearly 2000 crores, which the Lokpal will have access to without “any administrative or financial sanction from any government agency.” The drafters have to explain 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 right in demanding a strong anti-corruption law. But he must understand that in a democracy no law can be passed without proper debate, and it would be unfair on his part to pressurise MPs into voting only for the JLB.