Feeding On False Fears

Criticism that the Lokpal will become a Frankenstein’s monster is overblown

  By - Prashant Bhushan
   

Ever since the joint drafting committee for the Lokpal Bill was formed, many issues have been raised about the proposed Lokpal by several persons, some of whom are highly respected. The criticism by some people, including some sections of the media, has however been irresponsible. It is said that the Bill makes a mockery of democracy and seeks to create a ‘Supercop’ which could turn into a Frankenstein’s monster. When such criticism is made by respectable people and run as a campaign by sections of the media, it is natural for innocent citizens who are not familiar with the issues to become confused and start wondering if there are indeed serious problems with the Bill. 

   These critics are saying that the Lokpal has been given draconian powers of contempt, search and seizure, laying traps, telephone interceptions, and attaching assets of public servants. But these powers are vested with all investigative agencies and are essential for effective investigation. The difference is that the Lokpal will not need the authorisation of the home secretary for tapping telephones. The Lokpal, being an independent multi-member authority selected by a transparent and broad-based selection process whose functioning will also be transparent, is a much safer body than the home secretary to be entrusted with this power. The power of contempt is required to ensure that the orders of the Lokpal are complied with. The power of freezing assets of public servants and their abettors which have been acquired by corrupt means is essential if those assets are to be recovered. This is a lacuna with the existing law that the Lokpal Bill will seek to plug.
   

It has also been alleged that the Lokpal will be the investigator, prosecutor and judge, all rolled into one. Such criticism arises from a gross misunderstanding of the Bill. The Lokpal will have an investigative wing and a prosecution wing under its administrative and supervisory jurisdiction. If, at the end of the investigation, the investigative wing finds that a corruption offence has been committed, it will send the case to the prosecution wing which will prosecute the case before the special courts which will be part of the normal judiciary. The special courts will not be under the Lokpal. The Lokpal will only periodically assess how many such courts are required to complete the trial of corruption cases expeditiously and the government will be required to set up that many special courts. One of the serious problems today in bringing corrupt people to book is that the prosecutors being under the control of the government often compromise the case. And the inadequate number of courts to try such cases allows them to drag on for years during which time witnesses become unavailable or get compromised.
   

Concern has also been raised about what will ensure the integrity of the Lokpal itself. The Bill seeks to address this by providing several layers of checks. In the first place, the Bill requires that the entire functioning of the Lokpal machinery be totally transparent. It will be required to put the entire record of any investigation on its website. Any complaints against the investigation or vigilance officers can be made directly to the Lokpal or to an independent complaints authority to be set up in each state. These authorities would be required to expeditiously decide complaints against the vigilance officers in public hearings to ensure transparency. Complaints against Lokpal members could be made to the Supreme Court where five senior judges would, if they found a prima facie case of misconduct, constitute a bench to inquire into the complaint. Moreover, the Lokpal’s orders would be subject to judicial review before the high court or the Supreme Court. These measures should make the Lokpal and its officers sufficiently accountable.
   

Some respectable retired officials have raised concerns about the proposal to bring the CBI and Central Vigilance Commission (CVC) under the Lokpal, and want them to be left out. But the entire raison d’etre for an independent and empowered Lokpal is because the CBI is controlled by the very government whose senior officials it is required to investigate. That is why it cannot function independently. It has also become corrupt since it is not accountable to any independent body. The CVC enjoys mainly recommendatory powers which are frustrated by the government often not accepting its recommendations. Moreover, CVC members are selected by a committee comprising the prime minister, home minister and leader of the opposition, all of whom have a vested interest in having weak or pliable officers for a body which can investigate them. That is why they need to be brought under an independent, empowered and accountable Lokpal.
   

Corruption in India has assumed such proportions that it robs public resources, distorts and undermines development and threatens democracy itself. It must be tackled urgently by creating a strong, empowered, independent and accountable anti-corruption institution. That is what the Lokpal Bill seeks to do. We must remain firm in our resolve and steadfast in our course. This is one of the decisive battles of our times which, if lost, would consign us to becoming a banana republic and a mafia state.
   
The writer is a senior Supreme Court advocate and a member of the Lokpal Bill joint committee.