The Lokpal Debate: Don't alienate political parties

On April 9 this year, Anna Hazare and his supporters achieved a great victory against a recalcitrant administration. A combination of fortuitous circumstances created a synergy that overwhelmed the administration. But let us be wary because the moment has passed and politicians of all hues will get together and chalk out a strategy to prevent a powerful, independent and no-nonsense Lokpal.

The CAG report on the 2G scam; the Commonwealth Games scam culminating in the Shunglu report; the energetic, bold and hands-on approach of the Supreme Court bench dealing with the 2G scam case; the disqualification of the CVC by the chief justice’s judgment which considerably tarnished the image of the PMO and the home ministry — all played their part in creating a groundswell against corruption. A key role was also played by the print and the electronic media which, by their unrelenting campaign against corruption contributed to the administration’s acquiescence.

Don’t alienate political parties
The concept of Lokpal in its modern form is based on distrust of government officials and a suspicion that they will not act honestly. 

It is said that in 1713, Sweden's King Charles XII was in exile and needed a representative in Sweden to ensure that judges and civil servants acted honestly. So he appointed the supreme ombudsman (HOGSTE Ombudsmannen), who would have the right to prosecute if they didn’t. In 1809, Sweden became the first nation to appoint a parliamentary ombudsman (independent of the executive branch) in its modern form to safeguard the rights of the citizens.  

The following needs to be taken into consideration in the drafting of the Lokpal Bill:

For starters, the appointment of a Lokpal and his deputies (Up-Lokpals) is of pivotal importance. All civil servants who have occupied positions at joint secretary or higher levels, whether serving or retired in the last five years, should automatically be disqualified from these posts. Constitutional positions like CAG, CEC or the higher judiciary should be exempted from disqualification.

Secondly, there should be stringent penal provisions against ‘perjury’ committed before the Lokpal authorities. Summary trials and heavy financial penalties should be provided for. 

Thirdly, the Lokpal must have its independent separate cadre of investigators empowered to perform police functions. Once in the cadre, they should be prohibited from going back to any state or central cadre so that no allurements can be offered. They should be prohibited from post-retirement positions for a specified number of years and should be completely independent of the executive.

Fourthly, to avoid criticism of overloading, and over-extension of activities, the bill should provide for implementation in three or more phases. In the first phase, the activities of the Lokpal and deputies (not more than five in number) should be confined to high public officials, including ministers, former ministers, legislators, bureaucrats above a particular level, and other non-officials who are suspected of conspiring or colluding with them. In the second phase, lower-level public officials may come under purview. In the third phase, a general public redressal complaints’ machinery should be put in place through organisation of the Lok Ayuktas.

It is essential that jurisdiction for the entire spectrum of three or more phases be enacted and inserted in the bill straightaway but thereafter be brought into force by the Lokpal gradually, without any further parliamentary or governmental approval.

Further, all public servants should be required to forgo confidentiality and respond to queries from the Lokpal except when national security, defence, or foreign relations are compromised. Orders and contracts by defence or security forces should not be exempted from disclosure.

Finally, one major pitfall to be guarded against is that the bill is not deferred or defeated or rendered toothless in Parliament. For this, the cooperation of all political parties is necessary. It is foolish to alienate them by raising other contentious issues. Anna Hazare and the members of the committee should be careful of their own supporters. Let us only concentrate on tackling corruption. Silence is the best option for Anna Hazare and his team — his ‘halo’ should not be dimmed by other avoidable controversies.

Let us remember what Kautilya had said: “Just as fish moving under water cannot possibly be found either drinking or not drinking water, so public servants cannot be found out while taking money.”

The big fish in India are expert underwater swimmers. Let the Lokpal structure be lean, mean and engender fear. Lean so as not to get over-extended; mean to the corrupt big fish; and dreaded by all wrongdoers.

— The writer is president of the Bar Association of India