Lacunae in Jan Lokpal Bill

To facilitate debate and to better understand ‘Janhit Lokpal Bill’ today’s post of SRRF Dialogue covers issues raised by Justice (retd) AP Shah, retired Chief Justice of Delhi High Court who gave us one of the most cerebral argued verdict on decriminalising homosexuality. His judgement also brought Judges under the domain of RTI much against the wishes of the then CJI of India and now mired in various controversies, Shri KG Balakrishnan (many say that verdict cost Justice Shah elevation to Supreme Court). This post is based on a recent article. It has identified several lacunae in the Bill as drafted by the Civil Society.

q      Combining investigation and prosecution powers

A prosecutor is an agent of justice and an officer of the court. He or she must apply an unbiased and independent mind to the case prepared by the investigating officer. Bringing of the two powers under one agency of Lokpal will compromise the basic principles of criminal justice.

q      Several definitions are vague

Several of the terms included in the Draft Bill are rather vague and require to be further defined. Terms like ‘vigilance angle’ includes within its ambit acts such as ‘exercise of discretion in excess’ etc. are loose expressions of noble intent, but likely to cause havoc during application and judicial interpretations. In fact definition of Whistleblower under this Act is far more restrictive (person who faces a threat of professional or physical harm for making a complaint to the Lokpal or requesting information under RTI) than the present definition under the Whistleblower Bill pending before parliament (mere making of a public interest disclosure entitles one to protection under the Bill).

q      Selection Committee

The Bill requires that the selection committee should include two of the youngest judges of SC and two youngest chief justices of high courts. It is not clear whether the criteria would be the ‘actual age’ or the ‘least’ length of the service. Purpose of such requirements is not clear why least experience is being preference, it sounds as if the proponents of the Bill consider that the system corrupts and hence would prefer to involve only young judges in the process of appointment.

Further it is not clear what purpose is served by including all the outgoing Lokapl in the selection committee. They can always be informally consulted and their comments made part of the documentation of each candidate being considered for Lokpal.

q      Videographing of the selection process

The Bill requires that the entire proceedings of selection committee be videographed and be made public. After making elaborate process of identifying persons who will be in the Selection Committee we must trust them and allow them to deliberate in a free environment & in confidence.

q      Lokpal becoming executive

Clauses 8 & 17 empower Lokpal to reverse the decisions of the executive such as grant of licences, permits and even blacklist companies and contractors. Thus Lokpal is turning itself into executive. An ombudsman type of institution should identify what laid down processes the executive has not followed and make the executive take decisions following those procedures. If the executive fails to follow the same in letter or spirit, Lokpal could approach the courts.

q      Appeals not allowed

Most decisions of Lokpal would not be open to appeals in higher courts. This is against the principles of natural justice. It could also undermine the Letter of Rogatories, which most foreign courts want to be issued by independent courts.

q      Independence of judiciary compromised

Clause 17 & 18 give power to Lokpal to initiate inquiry against any High Court or Supreme Court judge on the basis of any allegation of malafide against any judge. This would require constitutional amendment.

q      Lokpal Fund

The draft Bill envisages creation of a fund over which it will have absolute discretion. There is no provision of parliament scrutiny over these funds, thus undermining the supremacy of parliamentary institution being the fundamental feature of our constitution.

Since the bill empowers Lokpal with enormous powers including telephone tapping, confiscation of property, etc. while these may be necessary, there is need to have adequate checks and balances against the misuse of these powers.  As Lord Action famously said ‘All power tends to corrupt and absolute power corrupts absolutely’.

SRRF Opinion

While there is no doubt that pressure of Anna Hazare’s fast has worked and the Govt had to succumb to in notifying a draft committee,  however law-making a specialised task requiring specialised knowledge and wide consultation of stakeholders. Lokpal institution is too important to be formulated in haste and without adequate consultation.

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