Concept of Lokpal as an institution to probe corruption charges against top echelons was first mooted in year 1960 when K.M.Munshi, (a member of Constituent Assembly) advocated for conferring the status of legal independence with powers of a court. M.C.Setalvad, a veteran legal luminary joined the issue and vociferously demanded for setting up the institution on the pattern of Ombudsman as prevalent in most of the Scandinavian countries. In year 1966 Administrative Reforms Commission headed by Santhanam also recommended in its favour. It is indeed a matter of concern that inspite of the growing number of corruption cases involving high-ups, the Bill on this august institution could not be enacted so far though presented before Parliament more than 8 times so far. This only reflects that successive governments have all along been indifferent to the growing corruption though they paid lip-service crying hoarse outwardly. Though the Bill for setting up Lokpal was to be introduced in ensuing winter session of Lok Sabha, Government has dragged feet and shelved the matter as it had been doing for last several decades. It appears corruption is no longer an issue for the country’s ruling class.
Looking at the present scenario, there is no independent institution to probe corruption cases in the country. The agencies like CBI and CVC are not independent like Election Commission or CAG and they work under the Government as any other ministry or department like Health, PWD, Education or any other department. It is not a Constitutional body nor any independence is conferred upon it. Even these two agencies are so heavily overburdened that they can not take up every case of corruption for investigation. Moreover, CVC’s jurisdiction is all the more confined and restricted only to the officers of All India Services only. So far as C.A.G. is concerned, it is no doubt a Constitutional Body but its primary job is to conduct an audit and present report to the Parliament. It has nothing to do with framing of criminal cases. Thus there is no mechanism in the country which can be invoked to seek investigation into corruption cases with an aim to combat corruption involving high-level persons occupying constitutional offices.
In a short span of past few months, country saw how scams after scams stumbled out from the cupboard of the Government departments. Take for instance, 2-G Spectrum scam, CWG-2010 scam, Adarsh scam, Mining scam, Satyam scam, Ketan Parekh scam, Barak missile scam, Oil for food scam, Broad-casting rights, Games Village Flats scam, IPL scam and host of others are just tips of iceberg pointing to scam in almost every project that Government undertakes. It is intriguing that though the financial implication of these scams run into several lacs of crores, not a single person has been convicted. On the contrary, the bureaucrats under cloud were elevated to higher assignment. More than two lac crores of rupees is anticipated to have been stashed away in foreign banks without any check. Loyalty and not integrity has become the sole criteria for reshuffling of bureaucrats. More than a dozen whistle blowers and RTI Activists have been murdered. Raising voice against corruption is being gagged. Corruption is assuming monstrous proportion and there is total lack of will to fight it out. It is under such a scenario that demand for setting up an independent institution like Lokpal has assumed more significance than it had assumed in fifty years ago.
The institution of Lokpal is, in fact, akin to the Ombudsman system prevalent in large number of Scandinavian and European countries. In U.K. it is known as “Parliamentary Commissioner” and possesses powers and jurisdiction to look into complaints against Members of Parliament. In Sweden and Finland, the has the power of court to prosecute erring public servants, whereas in Denmark, he can only order prosecution. In our country, Ombudsman has been introduced in various sectors like Banking and Insurance etc. But the constitutional offices and high political offices have been left excluded despite the fact that maximum corruption is reported from such offices. The Lokpal Bill 1998 proposed to confer the power of a civil court for summoning and enforcing attendance. Under this Bill, Lokpal’s duty was to submit report to the Government and latter was bound to furnish Action Taken Report on that report before Parliament.
Under the proposed Lokpal Bill, the institution of Lokpal shall comprise 3 members including a Chairman who shall be a sitting or retired Chief Justice of India or former Judge of the Supreme Court and two members to be chosen from among sitting or retired judges of the Supreme Court or sitting or retired Chief Justices of High Court. These members shall be appointed on the recommendation of a Committee headed by the Vice President and Prime Minister, Lok Sabha Speaker, Minister of Home, Minister of Law and leaders of the opposition in Lok Sabha and Rajya Sabha. They shall be appointed for 3 years or until they attain the age of 70 years whichever is earlier. Bill empowers the Lokpal to punish with imprisonment and/or a fine those guilty of making false or malafide complaints. The jurisdiction of Lokpal under the re-drafted Lokpal Bill shall extend to the investigation of corruption cases against the Prime Minister, his ministers, colleagues as well as MPs, members of defence services under the purview of the Lokpal. However, jurisdiction of Lokpal shall not include any allegation against the Prime Minister in relation to his functions concerning national security, foreign affairs and public order. Thus Prime Minister shall continue to enjoy immunity in all sorts of matters falling within the ambit of national security and public order. Further, the Bill excludes the constitutional offices like President, Vice President, Speaker, Dy. Speaker, Dy. Chairman Rajya Sabha, sitting judges of Supreme Court and High Court, Comptroller and Auditor General, Election Commission, Union Public Service Commission who shall not be answerable to Lokpal nor their acts shall be called into question.
The Lokpal shall look into the complaints relating to corruption only and its jurisdiction is not to extend to redressal of grievances. The institution of Lokpal is not envisaged as mechanism to seek redressal of grievances. Moreover, it shall have no power to issue any order, writ or direction to any authority except seeking assistance in gathering facts relating to complaint on corruption. Lokpal shall look into corruption related complaints only and it shall have no suo moto powers to assume to itself the jurisdiction to inquire into any case against which there is no formal complaint. It is debatable why suo moto power should not be granted to Lokpal especially when it is envisaged to act as watch-dog against corruption. Absence of any judicial power including power to issue summon and punish for contempt for itself are summum bonum for the institution of Lokpal to succeed.
The serious infirmity from which the proposed Lokpal Bill suffers relates to its dependence on Government for mechanism to investigate into complaints. Another aspect relates to the eligibility of a complainant. It is proposed that any person other than a public servant can make a complaint. Debarring a public servant from making a complaint is contrary to the Whistle Blower Bill which too has been kept limbo by the Government. It can not be denied that a public servant might be well conversant with the fraud or malpractice than a layman in the society. To ensure checks and balances, measures could be introduced to ensure that lodging a complaint should not be intended merely to harass or defame a public functionary. For that purpose provision can be introduced under which malicious complaints can boomerang on the complainant just as we have already provisions for registration of case for lodging false FIR. But denying a public servant from lodging complaint even if there is substance in it would only defeat the very purpose of wedging war against corruption. It makes no logical a proposal to debar a public servant from making complaint in whose case he is bound to be responsible for the statements and facts. Another infirmity is with regard to lack of power of a civil court. It is not made clear whether the Lokpal shall have power to punish for its own contempt. In the absence of any such power including the power to summon and enforce presence of the persons concerned, the Lokpal Bill is unlikely to make any headway in fight against corruption. We have the experience of Lokayuktas which were set up by governments of as many as 17 states. The experience of working of Lokayuktas in states has not been satisfactory. The institute of Lokayukta has not been able to make any dent in malpractices of state government’s functionaries. The main reason behind failure of Lokayuktas is that no judicial power whatsoever was conferred upon them. Neither Chief Minister nor his ministers or other officers could be reined by them. For instance, in Karanataka, between 1986 and 2000, the Lokayukta ordered investigation in 2840 cases of which 1677 were charge sheeted but only 6 per cent ended in conviction. The state Lokayukta came across with with the complaint relating to 5 lakh tones of illegal iron ore worth Rs 200 crores. This was the issue which Karnataka Lokayukta Justice Hegde was fighting for and was stonewalled at every stage. In Uttar Pradesh, Lokayukta dealt with vulgar display of wealth by Chief Minister Mayawati. Justice N.K.Mehrotra took over as Lokayukta. But he too failed because he had to rely on the state authorities for investigations and did not have his own mechanism to supervise or monitor.
The institute of Lokayukta has failed mainly because of absence of any Central law with uniformity conferring any judicial powers on Lokayukta and their dependence on the State Governments for investigating into the complaints. If the Government really intends to fight against corruption, the proposed Lokpal Bill must contain abundant provisions to ensure independence, judicial powers to issue summon, to enforce attendance and punish for contempt of itself in addition to a specified mechanism to investigate into complaints without depending upon the government. In the absence of such provisions and legal status, Lokpal as an institution shall meet the same fate as Lokayuktas in several states have already met.