BY ARUN AGRAWAL
The Jan Lokpal Bill — despite wide consultations, various drafts and revisions — has defects which need to be attended to including the error of incomplete sentence (Clause 6u).
The following changes are suggested in the Jan Lokpal Bill version 2.3. The reasons for the changes have also been stated. A copy is being marked to the Parliamentary Standing Committee and to members of Team Anna too.
1. In the preamble the name of Kofi Aman should be deleted because his family members were involved in the Oil-for-Food programme scam, the largest scandal ever to hit the UN. Introducing his name in the Preamble itself will not be proper/auspicious in the proposed anti-corruption bill.
Suggestion: Better quotes on corruption can be inserted from Indian greats.
2. Section 4 (4) (d) reads: The following shall not be eligible to become Chairperson or Member of Lokpal:
(d) Any person, who was in the service of any government and has remitted office within the last two years, either by way of resignation or retirement.
Observation: The clause should be removed for the following reasons:
- The cooling off period of two years is discriminatory as there are any number of officers of proven competence and integrity who have made the transition to statuary bodies involving confrontation with the government seamlessly.
- The CAG, Election Commissioners, Information Commissioners etc are appointed without any cooling period and most of them have performed commendably. This despite their appointment being through a government majority. The cooling period is borrowed from a government officer joining the private sector which was struck down by Court.
- As the appointment is through a search committee and a selection committee, which does not have a government majority and both the committees have veto power of 3/10 on selection of a member, the cooling period is unnecessary. It will serve to curtail the tenure of the officer by two years or lead to the person taking up some other assignment in the two year cooling period. (presuming that a person can be appointed for two five year terms).
Suggestion: The clause should be deleted. A very important source of recruitment may be the non-judicial members of administrative tribunals who have administrative as well as judicial experience. Some of them may not be lawyers. It needs to be clarified as to whether they will be considered as government servant (and hence serve the 2 year cooling period leading to loss of tenure) or will be considered as persons with judicial background?
3. Section 4(6)(iii) Two judges of Supreme Court of India and two permanent Chief Justices of the High Courts selected by collegium of all Supreme Court judges.
Observation: It is impractical as the number of Lokpals to be appointed each year will be two or three (after the initial appointments). The judges of the High Court nominated by the collegium will be elevated or may retire. Each time after retirement/elevation the meeting of the entire collegium of thirty plus judges to select a particular Chief Justice of a High Court may not be desirable and may also lead to unnecessary heartburn from the Chief Justices not selected. It may also introduce a bias in the elevation of the selected judge to Supreme Court.
When all the other 7+ authorities involved in the selection of the Lokpal have been identified why subject two to a selection process?
Suggestion: Clause 4(6)(iii) should either be four senior most judges of the Supreme Court or two senior most judges of the High Court. It is as objective method of selection as the one proposed. It will not effect the independence of the selection procedure.
4. Section 4(8) A Search Committee shall consist of 10 members. Five of its members shall be selected by the Selection Committee from amongst the retired Chief Justices of India, the retired Chief Election Commissioners and the retired Comptroller and Auditor Generals with impeccable reputation of integrity, who have not joined any political party after retirement and who are not holding any office under any government. The five members so selected shall, through consensus, co‐opt another 5 members from the Civil Society in the search committee.
Observation: This clause is a bit complicated and confusing. It is obvious that the selection committee for the search committee is different from that of the selection committee of the Lokpal. The number of persons on this Selection Committee of the Search Committee has not been specified.
Suggestion: It will be better if the Selection Committee for the appointment of the Lokpal is also the selection committee for the Search Committee.
5. Section 4(15) Any nominations to which objections are raised by any 3 members of the Search Committee shall not be included in the short list.
Observation: Three members can veto an honest and competent person. Fifty percent of the Search Committee is selected by the Search Committee itself. Since there is another filter of three members of Selection Committee vetoing an appointment the word majority should replace three members here.
Suggestion: The word majority should replace any three.
6. Section 4(22) A person appointed as the Chairperson or member of Lokpal shall hold office for a term of five years from the date on which he enters upon his office or upto the age of 70 years, whichever is earlier;
Observation: This clause should be changed to that the term will be for five years which can be extended once/twice. The reason is that it will be extremely difficult to meet the stringent conditions for the appointment of Lokpal. In fact the checks and balances and the stringent conditions imposed on the appointment may lead to the vacancy not being filled.
More importantly, if someone has performed well then why lose the experienced person who is tried and tested? Give him another term as a reward to subserve public interest. This term may be limited to one or two renewals.
For example it would have been befitting to give Justice Hegde another term as Lokayukta if he was eligible age-wise and willing.
Suggestion: For a term of five years which may be extended by further term/s of five years.
7. Section 4(25) The Chairperson and members of Lokpal shall not be eligible for appointment to any position in the Government of India or the government of any State or any such body which is funded by any of the Governments or for contesting elections to Parliament, State Legislature or local bodies.
Suggestion: The prohibition on the Lokpal contesting an election to the Parliament or Legislature is violation of his fundamental right and unconstitutional and hence should be deleted. However, if permissible, his right to join a political party after retirement may be curtailed.
8. Section 6(c) After completion of investigation in any case involving an allegation of an act of corruption, to impose punishment of dismissal, removal or reduction in rank against government servants after giving them reasonable opportunities of being heard.
Observation: This amounts to sentencing and goes beyond investigation and prosecution and opens up the charge of the Lokpal having excessive powers.
Suggestion: Instead the power to suspend should be with the Lokpal and as both the investigation and prosecution is to be completed in a time bound manner, let the matter be decided by Court or the Competent Authority of the Officer after the recommendation of the Lokpal in its quasi judicial proceedings.
9. Section 6(u) to ensure the integrity of its functionaries and impose punishments of dismissal, removal and reduction in rank against.
Observation: Against whom? The sentence needs to be completed.
10. Section 17(1) No investigation or prosecution shall be initiated without obtaining permission from a 7‐Member Bench of the Lokpal against any of the following persons:‐
i) The Prime Minister and any other member of the Council of Ministers
ii) Any judge of the Supreme Court or any High Court
iii) Any Member of the Parliament
Observation: 17(1) iii will not get the vote of the MPs as they will not vote against themselves. However, there may be situation like cash-for-votes when the government may lose majority. Such situation may lead to demand by members themselves for a Lokpal investigations.
Suggestion: 17(1) iii Any Member of Parliament subject to a request for investigation being made by 50/100/150/200 Members of Parliament (this is to take care of voting for cash in order to save the government). One anticipates that the MPs may agree, otherwise the clause will have to be deleted in deference to those passing the bill.
(Arun Agrawal is the author of the book Reliance: The Real Natwar. The opinions expressed by the author and those providing comments are theirs alone, and do not reflect the opinions of Canary Trap)