India: A delusion called Lokpal - The corrupt will rejoice !!

In the last two days, the contradiction between Kejriwal and Anna has inadvertently brought out a reality that we at Jan Sangharsh Manch had asserted two years back when the idea of Lokpal was mooted. We had said that the Jan Lokpal bill or the Lokpal bill as framed either by Anna & Co or the Government respectively are great delusions. Kejriwal unwittingly has correctly termed the Lokpal bill as now agreed by Anna as “Jokepal†. We would like to add that the Jan Lokpal of AAP is also a Jan Jokepal bill. Fooling the people!

Now many would accuse our assertion as blasphemy considering the whole country is being fed with the gospel of Lokpal since the last two years. The common man, who neither have access to the proposed law nor the benefit of knowing the existing legal provisions in this regard, have been carried away about the idea of “strong Lokpal†smashing the corrupt officials and ministers like the kids who love their Spider Man or Super Man whamming the baddies. If they could understand the nitty-gritty of the Lokpal law, they would shudder to realize that the proposed law gives an extra opportunity to the corrupt to defend themselves than what the law provides to them at present. Let us explain:

The Government which under the constitution (either at Centre or State) is entrusted to administer the country as per the rule of law, operates through its employees, officers and Ministers. While exercising its sovereign duty to govern, the Government servants discharge a variety of functions. The ever expanding functions of Government have brought under their purview massive commercial transactions involving grant of licenses, passing of tenders, purchases, sale and lease of public property etc etc.

In all such transactions, Ministers and government officials have to work out major deals with private parties that involve huge amounts of money. In order to get lucrative contracts, Corporate houses and private Companies bribe Government officials. Thus the corruption is not only at the end of the Ministers or Government officials but equally by the Private sector players. Annas and Kejriwals fail to bring this truth out since they have not even attempted to suggest a law which would swiftly punish these private players who are the real perpetrators of corruption and the actual sources of bribe money.

The other source of corruption is spread at all levels of the Governments; from Peon to Prime Minister and from Chaprasi to Chief Minister. Money is exchanged for favours and obligations. Peon has his rate to move a file whereas a Minister has his rate to move a police officer from one post to another.

Presently, to combat these myriad acts of corruption, the rules of Central Government provides for disciplinary actions and/or prosecution under the Prevention of corruption Act (PCA). The CBI provides the investigative support whereas the Central Vigilance Commission (CVC) acts as the supervising authority over both disciplinary actions and criminal investigation. The section (19) of the Prevention of Corruption Act, 1988 (PCA) gives the power to the Government to sanction or not to sanction the criminal prosecution of the delinquent employee. The special courts under PCA cannot try the accused without the sanction of the Government.

The institutional mechanism to combat corruption of the public servants has broken down primary at the higher levels for the following two reasons.

1. In the cases of corruption arising out of the commercial deals, the Ministers and the Group A and B employees are generally involved and the only mechanism to prosecute them is to file cases under the Prevention of Corruption Act. The investigation is entrusted to the police of the Anti-Corruption Bureau who are under the thumb of the ministry. Even if a charge-sheet is framed, no prosecution can take place without the sanction of the Government which is seldom granted if the case involves a minister. A classical case at present is the rejection of sanction to prosecute Purusothham Solanki by the Chief Minister Modi. The High Court finally intervened and asked the Governor to decide and sanction was granted by the Governor.

2. The corruption cases at lower levels involving Group B, C and D employees do get prosecuted both at the disciplinary level as well as under the Prevention of Corruption Act since the higher authorities do not mind the lower level employees to get punished. The Central Vigilance Commission also is active in these levels. The cases fail only when the higher authorities take bribe and turn a blind eye to the delinquency at the lower levels or are themselves beneficiaries of the corruption.

The reason for the failure of the existing corruption prevention mechanism though otherwise extensive and elaborate, is the Government has control over three aspects (1) The exclusive control over disciplinary actions against the delinquent employees (2) The control over the investigative machinery like CBI and (3) the exclusive power to grant permission/sanction to prosecute a delinquent under section 19 of PCA. We at Truth of Gujarat firmly believe that if these three controls are removed by appropriate amendment of law, the corrupt elements in the Government can be dealt with far more effectively than either under Lokpal or Jan Lokpal.

Firstly we must notice that both Lokpal as well as Jan Lokpal bills are fully dependent on the Prevention of Corruption Act 1988 (PCA) for the actual prosecution of the corrupt officer or Minister. What has been completely overlooked by Anna, Kejriwal & Co that through deletion of the section (19) of the PCA, the Government will lose its power and control over the prosecution of the corrupt and free any citizen to file a complaint against the corrupt official or Minister directly before the Special Court under PCA without costing a penny. This will revolutionize the fight against corruption. Both Lokpal as well Jan Lokpal bill make elaborate provisions costing the exchequer thousand of crores to create the establishment of Lokpal only to bypass section 19 of PCA while this entire exercise can be avoided by just removing Section 19 of the PCA!

Next: We don’t need to create a Lokpal to have an independent/autonomous investigative agency. Even the idea of a completely autonomous investigation is fraught with dangerous consequences since any corrupt investigative officer enjoying such an autonomy can destroy the prestige and standing of even a Prime Minister by giving a false report under section 173 of CrPC. By demanding complete autonomy, AAP as well as Anna are endangering the very democratic accountability and foundation of the country.

What we need is an investigative agency that has freedom to investigate without the interference of the Government but at the same time remains under the judicial control instead of being under the administrative control of the Government. Investigative agencies both at Central level as well as State level should be thus created with the right to select, appoint, transfer, promote or punish its officers by either Supreme Court or High Court. These investigative agencies in turn should be placed under the control of the Special Courts under PCA. As and when any complaint is filed by any person, the Special Court can direct such an agency to investigate and monitor the investigation irrespective of the provisions of CrPC in this regard. Essentially what we are suggesting is that the Supreme Court or High Court should create and administratively control these investigative agencies which in turn can be directed to investigate by the Special Court under PCA for all corruption cases.

Lastly, the control over the departmental action against an erring employee should not be taken away from the Government in totality but the exclusive control as existing should be taken away. If the Government is wholly denuded of its disciplinary powers as being suggested by AAP, a chaotic situation would arise since the corrupt elements in the 57 lakh central Government employees will indulge in any act of corruption without the fear of any immediate action since such a corrupt employee will have to be heard by the Lokpal even to prove a prima facie case in order to initiate a departmental action or criminal! As we have said, the corrupt will rejoice with such a law coming into effect.

Apart from anything else, the creation and maintenance of the establishment of Lokpal to keep a check over 57 lakh employees of Central Government and lakhs more of the State Government, a parallel Government has to be formed under the Lokpal having thousands of more employees spending thousands of crores of public money. Also how are we going to ensure that the employees of Lokpal and Lokayukt are not corrupt? To keep a check on the employees of Lokpal and Lokayukt, may be we will need super-Lokpal or super-Lokayukts and so on and so forth. We must therefore reject the delusion called Lokpal and make the amendments as suggested here in the existing law to have a powerful machinery against corruption. We are producing herin below some of the extracted provisions of the Lokpal bill.

2(e) “complaint†means a complaint…. under the Prevention of CorruptionAct, 1988 (PCA) ; 2(2) The words and expressions used herein and not defined in this Act but defined in (PCA)..shall have the meanings respectively assigned tothem in PCA;14(1)(d) any Group ‘A’ or Group ‘B’ .. as defined PCA; 14(1)(e) any Group ‘C’ or Group ‘D’ Official .. defined in PCA.

20. ( 1) The Lokpal shall, on receipt of a complaint … it shall order the preliminary inquiry against any public servant.. to ascertain whether there exists a prima facie case or… refer the complaints .. to the Central Vigilance incase of public servants belongingto Group C and Group D, the Commission shall proceed in accordance to CVC Act, 2003.
20(3) A bench consisting of not less than three Members of the Lokpal shall consider every report received under sub-section (2) from the Inquiry Wing or any agency .. and after giving an opportunity of being heard to the public servant, decide whether there exists a prima facie case, and to proceed with one or more of the following actions, namely:- ,
(a) investigation by any agency (b) initiation of the departmental proceedings or any other appropriate action against the concerned public servants by the competent authority;(c) closure of the proceedings against the public servant and to proceed againstthe complainant under section 46.

23. (J) No sanction or approval of any authority shall be required by the Lokpal for
conducting a preliminary inquiry or an investigation on the direction ofLokpal, under section 197 of the Code of Criminal Procedure, 1973 or section 6A ·of the Delhi Special Police Establishment Act, 1946 or section 19 of the Prevention of Corruption Act, 1988, as the case may be, for the purpose of making preliminary inquiry by the Inquiry Wing or any agency (including the Delhi Special Police Establishment) or investigation by any agency (including the Delhi Special Police Establishment) into any complaint against any public servant or for filing of any charge sheet or closure report on completion of investigation in respect thereof before the Special Court under this Act.

24. (J) Where, after .. the findings of the Lokpal disclose the commission of an offence under the PCA .. the Lokpal may file a case in the Special Court and shall send a copy of the report together with its findings to the competent authority; 25. (/)The Lokpal shall.. have the powers of superintendence and direction, over the (CBI) in respect of the matters referred by the Lokpal for preliminary inquiry or investigation .

35. (1) The Central Government shall constitute such number of Special Courts..by the Lokpal, to hear and decide the cases arising out of the Prevention of Corruption Act, 1988. or under this Act.

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