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Legislative Comment: The Lokpal Bill, 2013 by S.C. Roy

Introduction:

The long awaited Lokpal Bill, passed in the Parliament in December 2013 has brought hope of corruption free India, to the citizen. The Lokpal Bill 2013[i] seeks to provide a mechanism to erase corruption in the public governance and the matters connected thereto. The term Lokpal (The people’s protector and caretaker) was coined by Lakshmimal Singhvi on 13th April 1963 during a parliamentary debate about grievance mechanism. The Lokpal is the Indian version of “Ombudsman “a Scandinavian[ii] word for a “grievance man “. It is a coincidence that the son of L.M. Singhvi, Dr. Abhishek Manu Singhvi, heading The Standing committee of parliament drafted the present bill. The historic debate on administrative reform in 1963 has taken us back to think that even in the early days of independence corruption was an issue though it was in a nascent stage. The present bill was tabled in parliament in 1968, 1971, 1985, 1989, 1998, and 2001, 2011-2012 and finally it could be passed in 2013.

This historic struggle to constitute Lokpal in Centre and Lokayukta in states shows the great concern of the people against corruption. Here it is an appropriate place to know what corruption is! Aristotle first used the term corruption. The term corruption comes from the word “corrupt” which means “guilty of dishonest practices”  ‘ “lacking integrity “, “infected “, “tainted”, “ debased in character “’ where as corruption means” to destroy the integrity of “. “cause to be dishonest “ , “lower morality “ , “rotten “, “spoiled “, “contaminated” etc.

Thus “corrupt “means “utterly broken “, “valueless “. Later Cicero added the terms “bribe and abandonment of good habits”. It is an illegitimate use of public power to benefit the private interest. The democracy depends upon The Government and its public offices through which the welfare schemes reach to the last person. The welfare schemes are administered by the chain of human system who are responsible for the development of the all.

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Here starts the endless saga of dishonest monopoly and misuse of power. Since the personal gain or having more to oneself than others or take a drop out of the pot is inherent in human nature. No one is free from “discontentment”. Corruption is rife like blade of grass “.

As the length and breadth of the blade of grass varies, the corrupt practices also vary from petty to systemic[iii]. Even the person on small rung is also indulged in receiving bribe and malpractices. The discontentment hankering after wealth and power, barbaric nature, callousness, fearlessness, greed, inhuman and unsympathetic approach are the root cause of corruption. Thus when these causes find reasonable climate to grow, the result is hue and cry all around i.e. in governance and public service and flows to private service also in the name of “better service”.  Thus the question raised by our Gurudev Rabindra Nath Tagore, where the mind is without fear and where the head is held high ……………………….. Hounds[iv] in the mind as even the judicial system is not free from smell.

As the nature of human being is to help their kith and kin violating rules/regulations /morals, even crushing the voice of the conscience. Hence favoritism and nepotism is rampant. It also includes casteism and religious favoritism. More so, the political favoritism has spread everywhere the discretionary power is applied without wisdom which is utter violation of rule of law /morals/ values/ which impairs the faith in the system. Therefore the Lokpal has responsibility for the restoration of faith in public offices by creating and environment of “zero tolerance in corruption “.

Anti Corruption laws in India:

Since discontentment and greed is an inherent character of human being, therefore legal provision has been made available to curb such tendencies. The Indian Penal Code is the forerunner. The Penal Code is against dishonest misappropriation of property[v], criminal breach of trust[vi], criminal breach of trust by servant or clerk[vii] , criminal breach of trust by public servant, or banker, merchant agent [viii]dishonestly receiving the property[ix] , cheating[x], dishonest concealment of fact[xi], etc.  The Prevention of Corruption of Corruption Act, 1988 specifically has been enacted consolidating and amending the law relating to the prevention of corruption. This is the reason that section 2(c) of the Act[xii] has enumerated and included officials under the heading “public servant”, despite broad provisions under section 21 of the Indian Penal Code. Section 2(c) clause (xi)[xiii] in the Prevention of Corruption Act has added the higher academic institution and highlighted corruption therein. Likewise in section 2(c) (xii)[xiv] seems to be additional corollary extending the ambit of private institutions receiving the grant from The UGC or similar institutions anyway, under the purview of the Corruption Act. Thus section 2(c) of the Act enumerates any person remunerated by the government, any person in the service or pay of local authority, in the service of corporation Judge or adjudicating functions; performing any duty in connection with the administration of justice; arbitrator, persons engaged in the election process, persons performing any public duty, office bearers of the cooperative society, chairman, member or employee of the service commission etc. The Act[xv] has elaborately explained under Chapter III the nature of the offence i.e. corruption in the term of “gratification” (u/s 7, 8, 9), acceptance of valuable things without consideration, criminal misconduct (u/s 11, 12, 13), as well as habitual act of corruption. The “Act” has provision for the appointment of special judges (u/s 3) and the offender shall be prosecuted as per the provisions of Cr.P.C. 1973. The special judge shall be deemed to be a magistrate also as per section 326 and 475 of Cr.P.C. 1973.

The Right to Information Act 2005 has minimized corruption up to the extent of disclosure of the information and the action by the CIC (Chief Information Commission). But the accused/public servants with the fascist character harass the whistleblowers. This is the reason that this “Act” is not in a position to bring transparency in public service. Likewise The Prevention of the Money Laundering Act 2002, Central Vigilance Commission Act 2003 have been created to curb corruption. Thus, despite these provisions available, corruption in public office is a rule. Now the common man has no relief without any type of gratification to the public officer. This hampered development hence social justice is crying for “New Incarnation of Lord Krishna “. Hence, in this utter be- wilderness, the incarnation of Lokpal in new form after the movement led by “Shree Anna Hazare “ has come in the shape of “Act No.1 of 2014 “ as a new year’s gift to the citizens of India.

The Lokpal and Lokayukta Act, 2014:

The preamble of the “Act” expresses the object and reasons of bringing this bill to ensure ”justice to all” by “punishing the act of corruption”, and prompt and fair investigation and prosecution. As India has ratified the United Nations Convention against corruption. The Act extends to the whole of India. The “Act”[xvi] has included The Prevention of Corruption Act 1988 which is a substantive legislation to combat corruption. Therefore the term “Complaint” u/s 2(e) of the “Act” has the same meaning here also. It also incorporates the Delhi Police Establishment, Act 1946, The Central Vigilance Commission Act 2003, and the Cr.P.C. 1973. The term special court u/s 2(e) has the meaning as in The Prevention of Corruption Act1988. The term Public servants, u/s 2(o)  has read with section 14 of the “Act”  has excluded the jurisdiction exercisable by any court or any other authority  under The Army Act 1950, The Air Force Act 1950, The Navy Act 1957  and the coast Guard Act 1978. It has included even the Prime Minister [xvii]of the Union and other members of either of the houses of the Parliament[xviii]. The term “Lokpal” has been defined as a body established u/s 3, which shall consist of chairman and such members, not exceeding eight out of whom fifty percent shall be judicial members. The Lokpal shall constitute two wings i.e. Inquiry wing[xix] and prosecution wing[xx] headed by The Director of Inquiry and Director of Prosecution respectively.

The director of prosecution has responsibility to file case as per the direction of the Lokpal before the ‘special court’ and take all necessary steps in respect of the prosecution of public servants in relation to any offence punishable under the prevention of corruption Act 1988[xxi]. The inquiry wing of the Lokpal shall consist of Delhi police as well as the central vigilance commission the purpose of any preliminary inquiry or investigation is to furnish information or produce documents relevant to the offence of corruption mentioned under prevention of corruption Act 1988. The Lokpal has been authorized to order for initiation of the prosecution and no court shall take cognizance of such offence except with the previous sanction of Lokpal[xxii]. Hence the Lokpal itself has been authorized to decide the complaint on the basis of inquiry and investigation as referred to the ‘special court’ or not. But nowhere in the Act has been mentioned about the CBI (central bureau of investigation). Whether the CBI has been abolished? Whether CBI will continue to function under the aegis of the central government? Whether there will be two channels or wings to investigate the corruption cases as the CBI has been doing? What about the CBI court? All these answers are absent in this Act. More so, the Lokpal has been empowered not only to decide the matter whether instituted to special court or not at the same time, it may recommend the government to transfer or suspend the public servant also. Although, there is adequate provision of removal of the chairman or any member from his office by order of the president on the grounds of ‘misbehavior’[xxiii]. But the term ‘misbehavior’ has not been explained. The completion of inquiry has to be made within 30 days[xxiv] and trial within a year[xxv]. But the Lokpal has been given appellate authority in respect of appeal arising out of any other law for the time being in force providing for delivery of public grievances by any public authority in cases where the decision contains findings of corruption under the prevention of corruption Act 1988[xxvi] has taken away the jurisdiction of supreme court but the provisions under s. 57  is contradictory where the Act says that ‘the provisions of this Act ‘ shall be in addition to, and not in derogation of , any other Law for the time  being in force ? More so, the Lokpal shall not inquire or investigate into any complaint, if the complaint is made after the expiry of a period of seven years from the date on which the offence mentioned in such complaint is alleged to have been committed[xxvii] . The Lokpal Act has also taken away the jurisdiction of civil court in respect of any matter, which the Lokpal is empowered by or under this Act to determine[xxviii].

Concluding remarks:

With the progress of democratic setup of governance, umpteen number of welfare schemes and implementation machineries are quite obvious, since human beings have inherent discontentment and greed, the public office and authority provide the opportunities of gratifications of variable dimension, coercion, victimization, exploitation etc. The term corruption expressed in the “Indian Penal Code “ In terms of offences and in the prevention of corruption Act1988 under chapter 3 , from Ss. 7-16. One just the result of the decrease in morals and disintegration of personality. Even the Lokpal Act is silent about the act of corruption to be ‘nipped in bud’. This Act has adopted the same procedure which is available under Cr.P.C , same legislation the prevention of corruption Act 1988 , the same enquiry and the investigation Agency the “Delhi police and Vigilance”  and the same ‘special court’ under the prevention of corruption Act, 1988 . It has extended the sphere of public servant including the ‘prime minister of India’ but it has excluded the judiciary. More so, it has taken away the appellate authority of the Supreme Court. Thus, in this country there will be two parallel apex court. The CBI has not been included in the investigating wing where as the CVC depends only on CBI. The limitation period mentioned under section 53 of the Act also weakens the hope of the citizen for corruption free governance.

  Here, it may be submitted that the act of corruption has become the ‘way of life’ in the Indian society as there is no system free from this evil; although the jurisdiction has been expanded in the Act but the procedural gain will remain the subject of moot also as the Lokpal has right to decide whether the case should be filed or not. Thus the director of inquiry and investigation may function under “Lokpal” as today CBI functions under the “Ministry of Home Affairs and PMO “. Furthermore there is no provision of appeal to the Supreme Court for the initiation or taking cognizance of the matter. Thus, it seems that the provision is violative of Article 32 of the constitution which is itself a fundamental right. Whether this Act is not taking away the same?  Further, India has population of 130 crores, how can the Lokpal headed by just 8 members deal with the large scale corruption cases. Since corruption is not the subject matter of bribery or embezzlement only. It is related to the violation of Article 14 i.e. Rule of law also. Thus in the name of discretionary power corruption has become a common practice in all the institutions public, private, central or state government. Corruption is unethical, immoral, illegal practices either for personal gains or achievement or to provide gain to the kith/ kin, political members, criminals, bureaucrats, etc. It is also violation of human rights by anyone who is in that capacity. Therefore the Lokpal Act requires to hit “act of corruption” from lower strata of administration to upper strata. In this regard it is submitted that “administrative audit “at each level of administration should be incorporated in the Lokpal Act. The administrative audit report submitted to the Lokpal or Lokayukta should be the basis of prosecution, in addition to the mechanism of “complain”, enquiry and prosecution which is traditional technique to curb the offenders which is not successful. At the same time the “human rights audit” by the human rights commission can nip in bud the act of corruption in the public offices. The financial audit which is held too late also requires to be “annual” by CAG (Comptroller and Auditor General of India) in all the sectors (either private or public). The audit in administration of justice is also required to curb corruption. Moreso, the audit of political parties can make the election process fair and restore trust in the representatives who are ultimately, role model as well as the source of confidence for unethical illegal practices in the governance. Therefore, the Lokpal is just picking the fishes through “Fishing Rod”, whereas it requires repair, renovation and if necessary demolition of confidence of the offenders from the grass root level by “administrative, human rights and financial audit” annually and prosecution as per the provision within the year. The publication of the report in the print media and discussion on the screen can curb corruption. The Act must incorporate the professionals and their bodies, corporate sectors under its purview.  The offenders have got such a confidence that they do not care breaking the rules, norms, even their own conscience. They have no fear of even “God” on the other hand, the common man has no confidence even to initiate the courage of rising voice against the offenders. The employees have to suffer the wrath of the “Big boss” everyday. It is the first rule that boss is always correct. The second rule is that if not correct, see the first rule. The policies and the process of appointment are also subject of concern.  Thus the Lokpal and Lokayukta Act 2014 is just a new expression of the “old idea”.

Reference

[i] The Lokpal and Lokayukta Bill 2013, now the Lokpal and Lokayukta Act no 1 of 2014 got presidential act on 1-1-2014

[ii] Morris,S.D. (1991) ,Corruption and politics in Contemporary Mexico, University of Alabama Press, Tuscaloosa

[iii] Systemic corruption means where corruption becomes rule rather than exception

[iv] Geetanjali

[v] S.403 of the I.P.C. deals with dishonest misappropriation of property

[vi] S.406 I.P.C.

[vii] S.408 I.P.C.

[viii] S.409 I.P.C.

[ix] S.412 I.P.C.

[x] S.415 I.P.C.

[xi] S.417 I.P.C.

[xii] The Prevention of Prevention Act 1988

[xiii] S. 2(c) (xi) of the Prevention of Corruption Act 1988 reads as any person who is a vice chancellor or member of any governing body, professor, reader, lecturer or any other teacher, or employee, by whatever designation called, of any university and any person whose services have been availed of by any university or any other public authority in connection with holding or conducting examinations.

[xiv] S.2 (c) (xii) of The Prevention of Corruption Act 1988 reads as : Any person who is the office bearer of an educational, scientific, social, cultural or other institution in whatever manner established, receiving or having received any financial assistance from the central government or any state government, or local or other public authority.

[xv] The Prevention of Corruption Act 1988

[xvi] The Lokpal and Lokayukta Act 2014

[xvii] S.14(1) (a)

[xviii] S.14(1) (b) and (c)

[xix] S.11 of the Act

[xx] s.12 of the Act

[xxi] S.12(2) of The Lokpal Act 2014

[xxii] S.23(2) of The Lokpal Act 2014

[xxiii] S.37(2) of The Lokpal Act 2014

[xxiv] S.38(2) of The Lokpal Act 2014

[xxv]S.35(2) of The Lokpal Act 2014

[xxvi] S.49 Of The Lokpal Act 2014

[xxvii] S.53 of the Act

[xxviii] S.54 of the Act

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