Can the Lokpal Bill remove a prime minister enjoying majority support?

The institution of an Ombudsman (originally based on a Scandinavian model) and variously termed as lok ayukta/Lokpal/ Upalokayukta has been set up in 18 states of India.

These institutions were based on the recommendations of the first Administrative Reforms Commission, headed by Shri Morarji Desai, in 1966, as a part of the attempt to “contain corruption”, which, even then, was stated “to be on the rise”.

“Public servants” were brought within the investigative and “recommendatory” purview of these institutions, while the coverage of political functionaries varied from state to state, with the chief minister being included only in a few states such as Karnataka, Madhya Pradesh, Kerala, Gujarat, Uttar Pradesh, Delhi, and Himachal Pradesh.

Some states such as Tamil Nadu and West Bengal have still not established such institutions.

There is no evidence to show that states where the institution exists are less corrupt than those where they do not exist. In Uttar Pradesh, where the lok ayukata has “jurisdiction” over the chief minister, there is no reported recommendation by the lok ayukta on any of the many malpractices alleged against the chief minister from time to time. In Maharashtra, the existence of this institution for over 35 years has hardly made any difference and corruption is widely perceived to be on the rise.

At the Union level, the Lokpal bill has yet to see the light of day. The earlier draft bills considered contentious issues, such as whether the prime minister and members of parliament and ministers were to be covered. All these bills died a natural death with the dissolution of the concerned Lok Sabha as there was no
consensus on important issues.

The problem with the Lokpal at the Centre is whether it will even partially address this growing problem. In the first instance, the Lokpal will have no jurisdiction over the states, where the situation is no better. There are constitutional difficulties in creating a central Lokpal with concurrent jurisdiction over the states, even assuming the state-level institutions can thereafter be abolished (to avoid overlap).

Secondly, if it were indeed to cover the investigation of the prime minister’s conduct, constitutional questions on removing a prime minister still enjoying the “confidence” of the Lok Sabha will remain unresolved. Unlike the governors of states, the President does not enjoy any “discretionary” powers under the Constitution.

Even at the state level, the Lokayukta in Karnataka has been helpless in regard to the alleged malpractices of the incumbent chief minister, notwithstanding having “jurisdiction” and being competent to make a “recommendation” to a duly “competent” governor in this respect.

Modelling these institutions on the lines the Western-style Ombudsman has not helped. These are “recommendatory” authorities, whose advice is expected to command the “respect” that everyone now affirms for Anna Hazare. But in India, the tendency is to ignore “recommendations”.

This has resulted in demands that the “recommendations” should be made “binding” on the executive, often voiced by Lokayuktas. This is an important part of the present face-off between the two sides today. But legal and constitutional difficulties can again stand in the way. Binding recommendations create dual control, unsustainable legally in other cases also.

The central bureaucracy has presently been left out, as they presently fall within the purview of the central vigilance commissioner (CVC), a separate statutory authority, possibly to avoid clash of jurisdictions. Of course, we can always provide that if a Lokpal commences an investigation, the CVC will be barred from any further steps in the same case.

There is no “quick fix” to the problem of corruption, but well-thought solutions do abound, including the need to insulate the bureaucracy (and particularly the police) from the mercy of the political executive as also proposals to deal with bureaucratic lapses (already on the anvil). These need to be implemented without delay.

The Judicial Accountability bill, if enacted, will help improve matters in the higher judiciary, who under the garb of judicial independence, have for long become “judges” of their own cause, violating the first principle of law.

Enacting a Lokpal Bill can, at the best, only be a small step, even if the institution is “fully empowered”, for reasons already recounted. In the mass frenzy of the moment, no doubt, one more assurance might be given and one more bill “introduced”, which may never see the light of day. After all, as someone rightly said, politicians are persons “who say something, think something else, and do something entirely different”. Are “activists” much better?