Legal eagles get set for the long haul

Even as people danced and sang to celebrate their success in forcing the government to form a joint drafting committee of civil society representatives and ministers, the anti-corruption activists know that the battle is only half won and tough times lie ahead when the committee sits down to dissect every section of the Jan Lokpal Bill.

The major challenge for the 10 members of the Lokpal Bill drafting committee would be to ensure that the “institutional integrity” of the Lokpal is not compromised in the selection of the first ever Ombudsman for the country.

The UPA-II recently suffered a series of shocks on account of “integrity deficit”, the most famous case being the Supreme Court scrapping the appointment of PJ Thomas as the chief of the
Central Vigilance Commission.

A former chief justice of India, MN Venkatachaliah, who also headed the Constitution Review Committee, says a big achievement of the Anna Hazare-led movement was to impart an identity to civil society, which till now had been a fractured entity.
When asked whether the current legal requirement of prior sanction for prosecuting a public servant is a necessity in law, Justice Venkatachaliah said, “It is, but there should be a limit for the grant of sanction or its refusal. In case no decision is taken by an appropriate authority, it should be deemed that the authority concerned has no objection to the prosecution’’.

Noted human rights lawyer, Colin Gonsalves, however, believes that the provision for sanction must be done away with, as otherwise the radical enactment would lose its efficacy. 

“This will be the first legislation that has been enacted at the people’s call’’, says Gonsalves. “It’s good that the government has realised the strength of the movement by a people who have been “oppressed and suppressed by corrupt governance’’.

The five nominated ministers on the drafting committee are Pranab Mukherjee, P Chidambaram, M Veerappa Moily, Kapil Sibal and Salman Khursheed while the civil society members are Anna Hazare, former Supreme Court judge N Santosh Hegde, advocates Shanti Bhushan and Prashant Bhushan and activist Arvind Kejriwal.

Interestingly, of the 10-member committee, only Arvind Kejriwal and Anna Hazare are not lawyers, which is a sure indication of what’s in store in the committee meetings when all the legal eagles sit down and battle it out over every section of the Jan Lokpal Bill, which was drafted by advocate Prashant Bhushan, former Supreme Court judge N Santosh Hegde and activist Arvind Kejriwal.

Talking about the future plans for the committee, Kejriwal told DNA: “The real battle starts now. We will first present our bill to the ministers and then try to understand their differences. Once we know the clauses or sections they have problems with, we would try to build consensus and clear apprehensions.”

What if the two sides face a deadlock? “We will need people’s support at each and every step. We would keep in touch with all those who supported the movement. People should be ready to get on the streets whenever it is required,” he said.

The joint drafting committee has to complete its work by June 30, after which it has to be presented in the Parliament in the monsoon session.

Apart from institutional integrity, another major issue is likely to be the definition of ‘corruption’ itself, which needs to be reviewed. Over the years, this menace has grown more sophisticated and assumed new shapes. Not only are those guilty of amassing money and misusing financial or political powers corrupt, even those who operate through quid pro quo or moral turpitude must also be made liable for time-bound prosecution under the existing legislations.

The Lokpal, as it is understood today, is an autonomous body comprising members who enjoy impeccable integrity and enjoy the trust of the public. The office of the Lokpal is self-sufficient to deal with the complaints and can have them investigated by its own sleuths.

As of now, tainted public servants (such as government employees, judges, armed forces, and Members of Parliament) can be prosecuted for corruption only under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988.  However, the Code of Criminal Procedure and the 1988 Act require the investigating agency (such as the CBI) to get prior sanction of the central or state government before it can initiate the prosecution process in a court.

The office of Lokpal need not look for the government or its agencies for prosecuting a public servant even if he is the Prime Minister. The proposed law, of course, will need to put in place stringent measures to check malicious complaints, so that an honest man isn’t put in the dock.