Elections are just around the corner and the UPA is busy showcasing its achievements to win the people's mandate once again. Stung by the trenchant criticism from the BJP about its many shortcomings, in the last few weeks before the EC announces the model code of conduct, the UPA government is working overtime to prove its worth, something which it ought to have done soon after it secured the people's mandate a second time in 2009.

The hurried manner in which the government is trying to set up the selection committee to find appropriate people to constitute the lokpal, throwing legality and ethical propriety to the winds, is indicative of this haste. The lone jurist on the selection committee is a nominee of the president, no doubt, but the person must have the backing of the other four members and not just that of the government of the day. Unfortunately, the very first step to activate what will become India’s premier anti-corruption agency is faltering.

Reactions to the anti-corruption framework that the Lokpal Act seeks to establish have ranged between two extremes – the reverent as well as the irreverent. While the leading lights of the AAP have dubbed it a ‘jokepal’, the aspirants to a hat-trick of electoral mandate have packaged it as the next best thing after sliced bread. Yet every citizen (whether aurat or aadmi) has the right to make an assessment as to whether the lokpal will become a ‘corruption ka rokpal’ or a ‘chokepal’. Such an assessment must take into consideration not only the internal defects of the enactment but also its relationship with other laws and pending bills that seek to strengthen the anti-corruption architecture in India.

Four problems
Four problems will seriously affect the functioning of the lokpal. First, the process of selecting candidates for appointment as the chair and members of this body has a hidden mechanism that makes the search committee somewhat redundant. Under the law, the selection committee may consider any candidate other than those put up by the search committee. Such nominations will not be subject to any selection process as others that will come through the search committee route. This is arbitrary to say the least.

The purpose of the search committee is to diligently select candidates with the required expertise, experience and impeccable integrity and forward them to the selection committee for a final decision. The discretion to consider other names undermines the sanctity of the search process. Rules are necessary to ring-fence this power to prevent abuse of the selection process.

Second, unlike most autonomous statutory bodies that are set up with special functions and powers where the chairperson is equal to other members in all respects except the additional charge of managing the day-to-day functioning of the body, the lokpal is structured differently. The chairperson of the lokpal is not the first amongst equals. The chairperson may appoint the secretary of the lokpal without requiring any consultation with other members.

Similarly, the power to appoint the directors of the inquiry and the prosecution wings – the two arms on whose actions the effectiveness of the lokpal will depend entirely – is vested exclusively in the chairperson. The Lokpal Act does not require the chairperson to consult other members before making such appointments. Again, matters such as constituting or reconstituting the benches of the lokpal on which cases will be heard and decided are entirely in the jurisdiction of the chairperson. A despotic chairperson may also transfer a case from one bench to another without any consultation with other members.
This is unlike the information commissions or the human rights commissions, whose constituting laws require all members to play at least an assisting role, if not to act in collegium while making such decisions.

Further, when there is a difference of opinion among the members of a bench on a particular case, the chairperson has the power to decide the matter himself/herself without referring it to a larger bench of the lokpal. Again, rules must define the exercise of these powers to prevent any arbitrariness from seeping in.

Third, the CBI, which steadfastly refused to be subjected to the jurisdiction of the lokpal earlier, is again trying to throw a spanner in the works by raising technical issues. They are said to have complained to the government about being required to submit their investigation reports (or charge-sheets) to the CVC in the case of accused officers belonging to the lower echelons of the bureaucracy, namely Groups ‘C’ and ‘D’. This objection must be subject to the strictest scrutiny. For accused officers belonging to Group ‘A’ and ‘B’ services, the CBI conducts an inquiry or investigation depending upon the directive of the lokpal. At the end of the investigation, the Lokpal Act requires them to submit a copy of the charge-sheet each to the lokpal as well as the special court taking cognizance of the case.

A similar procedure could be mentioned for the employees of Group ‘C’ and “D’ by incorporating a minor amendment in the Lokpal and CVC Acts. This does not have to become a major crisis of law.

Fourth, the absence of effective control of the lokpal over CBI for cases it hands over to them for preliminary inquiry or investigation is most problematic. The lokpal must have not just supervisory jurisdiction over the CBI, as is the case now, but also administrative control in the form of writing their annual performance appraisal reports and being consulted on transfers. Without this power, the central government would continue to control CBI at the expense of the lokpal, vitiating the very principle of insulating such investigating agencies from political control.

This is not all. The Lokpal Act is unfortunately outdated and parliament was advised to adopt it in that form even though the central government knew better. For example, there are no Group ‘D’ employees in the central government, thanks to the recommendation of the sixth pay commission. All Group ‘D’ employees – such as office attendants, peons and drivers – have been assimilated in to a new service called ‘multi tasking service’ (MTS) since December 2010 when the Lokpal bill was still pending in parliament.

There is no recognition of this administrative reform measure in Lokpal Act. So effectively neither the Lokpal Act nor the CVC Act covers MTS employees for the purpose of investigating allegations of corruption. An amendment to both laws is an urgent necessity.

Outdated and arbitrary
Next, the UPA government tabled amendments to the Prevention of Corruption Act (PCA) in Rajya Sabha last year. This will make the lokpal both outdated and arbitrary. For example, the PCA amendment bill makes bribe-giving a punishable offence on the same level as bribe-taking. Whether all kinds of bribe-giving, particularly the coerced ones, must be criminalised like other kinds of collusive or consensual bribery, which works to grease the wheels of the bureaucracy, is a different debate. While the lokpal will look into complaints of bribe-giving more as an incidental element of corruption of public servants, the PCA amendment bill makes it a major offence requiring proper investigation in order to punish the bribe-giver. The Lokpal Act will have to be amended in order to cover this important aspect of the anti-corruption legal framework.

Then again, the clauses empowering the lokpal to attach, confiscate and forfeit the property of officers accused of corruption look draconian in comparison with the clauses on the same subject in the PCA Amendment Bill. The safeguards such as the right of the accused to receive a show-cause notice from the court prior to an attachment order, the right of appeal against an attachment order, right of persons having interests in the attached properties to be heard before properties are attached, confiscated or forfeited are all found in the proposed amendments. The lokpal, bereft of such safeguards, looks like a tailor-made recipe for abuse of power.

There is at least one bill pending in parliament which has become outdated due to the passage of the Lokpal Act. The Whistleblowers Protection Bill passed by Lok Sabha makes the CVC the point for receipt and inquiry into complaints of corruption against central government officers. There is no mention of the lokpal at all in this bill. Further, it does not permit a whistleblower to make a complaint against the PM for corruption, unlike the Lokpal Act, where such complaints must be received and inquired into through a special mechanism.

Whistleblowers who wish to complain about corruption against officers in states that have no lokayuktas or vigilance commissions are completely at the mercy of their governments. On one hand the Whistleblowers Bill does not provide for the creation of any autonomous body for investigating such complaints; on the other, the states have been given a year to set up or bring their lokayuktas in line with the central Lokpal Act with no consequences flowing for delays or refusals. Despite best intentions of the government, these efforts do not add up neatly to establish a strong anti-corruption framework for the country but amount to putting the cart before the horse.

While preaching the noble practice of charity, Jesus Christ once said: “Do not let your right hand know what your left hand is doing.” Unfortunately, the various actors, including civil society voices demanding strong anti-corruption systems and procedures, seem to be unwittingly following this principle for all the wrong reasons by not taking a holistic view of the legal architecture covering the efforts to combat corruption. This way more harm than good is likely to be done, leaving the accused and the victimised confounded, the courts bewildered, and only the mischievous lawyers laughing their way to the banks.