The definition of “corruption” has been narrowed down, primarily to mean accumulation of assets disproportionate to one’s income. Such an investigation is very elaborate, and takes years to complete.
It misses the main issue completely, i.e. that the nation is plagued by petty day-to-day corruption that hassles the common man, and against which he has no available remedy. The police inspector will not register his FIR, the engineer will not clear his house plans, the accountant will not clear his Government payment till the outstretched palm is suitably greased.
The Lokpal will have under him the Public Prosecutor who will report to him. The investigation will continue to be conducted under the Criminal Procedure Code, the oldest statute in the book and which has stood the test of time for more than a century and a half. Arguably, it is the finest Code in the democratic world. It provides for the Public Prosecutor to be independent of the prosecution agency.
This is at should be. Once the Public Prosecutor is subordinated to the Prosecution Agency, he may not exercise his fair and objective assessment of the results of the investigation, and may be prone to tender advice which is supportive of the investigation, right or wrong, fair or shoddy. It is a long-settled law that the Public Prosecutor is an ‘officer of the court’ whose sole task is to assist it in establishing the truth.
It is no part of his job to somehow secure a successful conviction. This is the unambiguous position in the Criminal Code, under which the Lokpal will, like the local police, investigate. The Prosecutor is somewhat of a misnomer. The Lokpal Act is a travesty of administrative law. He can delegate his powers of, say, ‘search and seizure’ to any subordinate “officer or employee”.
This is contrary to basic norms of law that power once delegated cannot be sub-delegated. This is a very dangerous proposition, which may have ramifications on the rule of law since the Lokpal Act is a very critical piece of legislation. It has jurisdiction over the Prime Minister, the entire cabinet, MPs and all Class I officers of the Government of India, Indeed, the entire elected Government is under the Lokpal, so to speak.
The Lokpal is authorized under the Act to attach, even if provisionally the “proceeds of corruption” of an accused. The provision is dangerously vague. What is “corruption” has not been defined anywhere. Indeed, “corruption” cannot be defined in law as it is a phenomenon, and not a definable misdemeanour.
Such an expression can lend itself to serious abuse. It is a basic proposition in democratic jurisprudence that expressions and ‘offences’ listed under criminal law should be capable of precise meaning. All Class I officers of the Government of India are going to be under the Lokpal’s jurisdiction. Once allegations are being enquired into against an officer, and the Lokpal feels that his continuance will affect the inquiry, it may recommend to the Government to suspend him.
The Government “shall ordinarily accept the recommendation.” All-India and Central Services enjoy Constitutional protection. As the President of India is the Appointing as well as the Disciplinary Authority, it is a virtual direction on the Head of State by a supercop who has no Constitutional role. The Lokpal Act provides that besides punishment under the Prevention of Corruption Act, the Special Court may also order recovery of loss caused to the exchequer by the indicted public servant.
If the loss is caused through a “beneficiary”, it may be proportionately recovered from the latter. Such a provision is of doubtful validity in law. The public servant may be subjected to a double whammy ~ recovery of loss as well as imprisonment. And an order passed against a (private) beneficiary, who was not a co-accused, is not under the Lokpal’s jurisdiction.
The Act is neither substantive nor procedural. It merely inducts members of the higher judiciary into an investigative arm of the Executive. They will merely supervise the police and duplicate the work of the CBI. Nor will the Lokpal have any jurisdiction over and above that of the CBI, as the apex court has categorically ruled that Ministers, MPs and MLAs are also “public servants” under the Prevention of Corruption Act.
The apex court has further ruled that prosecution cannot be initiated against the MPs without the prior sanction of the Chairman of the Upper House or the Speaker of the Lower House, as the case may be. The committee to select the Lokpal will comprise the Chief Justice of India or a Judge of the Supreme Court. Such a committee will be an executive committee, to be set up by the executive.
Assuming, for the sake of argument that a candidate for the post of Lokpal were to agitate against his exclusion through a writ petition in the High Court ~ in exercise of his Fundamental Right ~ a very anomalous situation may arise. The High Court may have to question judges of the Supreme Court.
The Lokpal, in substance, may be no more than a super CBI, and armed with extra powers ~ summary and largely unconstitutional. The CBI itself is essentially a police agency which is under the overall “superintendence” of the executive government, save during the formal process of criminal investigation.
This as it should be, to constitute checks and balances, so critical in a functioning democracy. The Lokpal Act has no such corresponding provision. In the absence of the same, it will become a parallel government, accountable to no one. It has the potential to destabilize a duly elected government, a fearsome prospect.
As it is, the CBI is virtually out of Government control. It is largely unsupervised. One of the reasons why the Government had to prematurely transfer the previous Director was that he was perhaps exceeding his authority in entertaining allegations with clear political overtones. The Lokpal, an essentially police agency and accountable to no one in particular, cannot be armed with powers to virtually monitor a duly elected government.
Little wonder that the Union Finance Minister, an eminent jurist in his own right, has publicly warned against the tendency of the CBI to (sometimes) lapse into “investigative adventurism”. “A bad law is the worst tyranny”, Francis Bacon, one of the greatest jurists of all times had warned. The Lokpal Act is a prime example of the same.
(The writer is a retired IAS officer)