The line that former Delhi chief minister Arvind Kejriwal dishes out every time he is in public gaze is that if the Jan Lokpal Bill had been passed obviously with the support of the Opposition parties by now Delhi would have been on the road to becoming a corruption free region. For the sake of testing his assertion, let us assume that Mr Kejriwal’s beloved Jan Lokpal Bill has become a law. And let’s also assume that the Lokpal, consisting of 10 individuals of impeccable integrity, has been installed.
The jurisdiction or power of the Lokpal, as defined by the Aam Aadmi Party’s bill, is to "inquire or cause an inquiry or investigation to be conducted into" any allegation of an act of corruption in respect of public servants and others who are privy or parties to such acts. On completion of investigation the Lokpal may "either drop the complaint or initiate prosecution before the courts" dealing with offenses under the Prevention of Corruption Act of 1988 as modified from time to time by the appropriate legisla ture.
In simple words, the job hitherto done by the police up to the stage of filing of a report under Section 173 of the Code of Criminal Procedure popularly known as chargesheet will, under the Jan Lokpal Act, be done by the 10 member Jan Lokpal, all of whom will be on a salary of '3 lakh per month, plus perks, plus staff. The total estimated recurring annual expen-diture of about '12 crore is to be met by the Delhi treasury, called the "consolidated fund of the National Capital Territory of Delhi". Who’ll pay for the land and the new office building is yet to be decided.
The legal status of the Lokpal report after investigation will be the same as that of a chargesheet in a criminal case.
The Lokpal will eventually have its own investigation and prosecution wing. Until that dream is realised, the Lokpal is authorised to "seek" the services of as many police officers it needs from the Delhi police! What if the Union home ministry refuses to oblige? Well then, the whole project would collapse. Lokpal’s own investigating wing will have all the powers of search, seizure and arrest available to the police in other states; thus, getting a police force that the Constitution of India has denied to Delhi through another door. The Lokpal Bill seeks to amend laws like the Code of Criminal Procedure, the Prevention of Corruption Act and the Indian Penal Code. But all of this requires presidential assent.
The list of "public servants" under the jurisdiction of the Lokpal is both exhaustive and impressive. It includes the chief minister, state ministers, members of the legislative Assembly, councilors of local bodies in the National Capital Territory and holders of office in any "public authority", i.e. any body constituted by or under the Constitution of India, for example the Union Public Service Commission and the Election Commission. The Delhi Development Authority and Delhi police both under the direct control of the Central government have been specifically made answerable to Lokpal. The judiciary at all levels is mercifully excluded from the Lokpal’s purview.
It is noteworthy that all actions of the Lokpal will be subject to judicial review. Every decision can be challenged before the high court and thereafter appeal to the Supreme Court is an obvious option. When prosecution will commence and when the corrupt will go to jail that end of the tunnel is far, far away. Delhi police officers working under the Lokpal will no doubt make a difference they will have better functional autonomy. Such autonomy was sought to be achieved through various police reforms recommended by several committees, all awaiting implementation even after the directive by the Supreme Court in Prakash Singh’s case (2006).
A simple measure advised by experts and accepted by the Supreme Court that doesn’t involve any extra expenditure is that the power to transfer police officials should not be with the political government but be left to a board consisting of senior officers whose tenure is guaranteed. However, politicians are unwilling to accede to this. We just have to revisit the saga of Uttar Pradesh minister’s missing buffaloes, or Somnath Bharti’s midnight raid to understand why.
It is no exaggeration to say this simple police reform would do away with the need for an unwieldy and costly establishment like Jan Lokpal.
The Lokpal, whether established by the Central government or proposed by the AAP, has jurisdiction over the entire body of public servants. Instead, if the Lokpal were restricted to inquire into the conduct of high dignitaries like the chief minister and ministers, the whole mechanism would not just be more effective, but serve a real purpose as well. Dealing with complaints of corruption against lesser officials should be left as it is now under the law.
Internationally the Ombudsman, from which the concept of Lokpal or Lokayukta originated, does not deal with micro-issues for the simple reason that such a jurisdiction will dilute the importance of the body. Further, too large a constituency to manage will have the potential of making the Lokpal itself a cesspool of corruption. That may be the reason why in most countries an ombudsman is for a specific organisation, like New York or Los Angeles city administration, or for one department, like the department of immigration. Suffice to say that
Mr Kejriwal’s Jan Lokpal is poorly conceived and badly designed it will achieve nothing useful except a grand programme of rehabilitation for retired judges and babus.
The question then is, was the AAP’s ill conceived bill at least backed by honest intentions? Evidence avai-lable points to the contrary. The bill has provisions that amend Central laws like Criminal Procedure Code, it envisages drafting personnel of Delhi police, it seeks to exercise jurisdiction over DDA, Delhi police, the UPSC, the Election Commission, and it seeks to get its own police force under the guise of having an investigating agency. And the whole scheme obviously involves substantial out flow of public money.
A group of well educated men headed by Mr Kejriwal cannot be accused of not knowing that the Delhi Assembly had no power to enact such a law. Each and every one of these aspects make it compulsory, under the NCT Act of 1991, that bill be submitted to the lieu tenant governor/President of India before it is tabled in the Assembly. Why then was the bill not presented to either, and even hidden from the public? The conclusion is inescapable. The AAP cannot be given the benefit of the doubt of their professed bona fides in marketing this Jan Lokpal Bill. They knew how untenable the bill was. So they unsuccessfully tried to stage manage a scenario where the rest of the world could be accused of sabotage. But all people cannot be fooled all the time.
The writer is a senior advocate of the Supreme Court and former additional solicitor general of India
