Lokpal and the game of heads or tails

Nature, it is said, abhors a vacuum. Jayaprakash Narayan filled the vacuum in 1974-75. And in 2011, when Delhi got engulfed by scams — CWG, 2G spectrum, people wre fed up, but had no shoulder to cry on. Then, Anna Hazare, a rare surviving Gandhian specimen, arrived in the capital. On April 6, he walked to Jantar Mantar from Rajghat and started his fast — to exert moral pressure on the government to get serious about fighting corruption. He had filled the void and people flocked to him in hundreds.
The UPA government, which had been dilly-dallying and inventing unique excuses to explain its inaction on corruption, and on the Lokpal Bill in particular, yielded and agreed to consult Mr Hazare and his team in drafting a Lokpal Bill. But the joint meetings of the drafting committee perhaps witnessed obstinacy triumphing over wisdom, and returned a divided verdict: The government’s Lokpal Bill, and Mr Hazare’s Jan Lokpal Bill.
On August 16, when Mr Hazare was arrested by a police commissioner for insisting on going on another fast, he became a hero for millions. The orchestra of obscene public utterances by arrogant men in power made people across the country react sharply and take to the streets to support Mr Hazare. Most do not know him, and they — like Mr Hazare himself — know much less about the Jan Lokpal Bill. For them Mr Hazare symbolises the fight against corruption. The danger is that they may start believing that his bill is a sure cure for corruption, which it is not.
Mr Hazare’s camp says that the government’s Lokpal Bill is a joke. They are right, it is, except on the point of limiting the jurisdiction of the Lokpal to ex-Prime Ministers, present and past ministers, MPs and a specified categories of high officials. Keeping the incumbent Prime Minister and judges of higher judiciary out of the Lokpal’s ambit is sensible. Mr Hazare’s Jan Lokpal Bill, on the other hand, extends to the entire class of “public servants” — from the patwari to the Prime Minister. It’s an ambitious mandate for the untested and untried machinery of Lokpal, and yet there is little concern in Team Anna that Lokpal may well collapse under the weight of the enormous burden now shared by several agencies. Some hints of a compromise on the Lokpal’s domain have been dropped by Justice Santosh Hegde. The best way forward in my view is to accept the government view on this one point and, if the Lokpal works well, extend it later. There are other very troubling aspects in both bills.
The “official” Lokpal Bill is like a fence built by prisoners around their jail — the emphasis being on escape routes. Clause 23 of the bill, which is central to the whole law, has an incredibly large number of speed breakers on the investigation route. Far too many “personal hearings” have been granted to the accused public servant: If the Lokpal “proposes” to inquire into a complaint, it shall forward a copy of the complaint to the public servant along with the material relied upon; Before the Lokpal concludes that a prima facie case is made out, the public servant has to be heard; Before the Lokpal refers the matter for further investigation, the accused shall be given a fair hearing; Upon completion of the investigation and before filing of the charge sheet, the public servant is to be given yet another opportunity of being heard; The public servant will decide whether the hearing of his/her case will be in-camera or open to the public. And finally, on the conclusion of the inquiry/investigation, the Lokpal can only file a case in a special court or recommend initiation of disciplinary proceedings — it has no other power.
Every opportunity provided at every stage of inquiry is a potential roadblock in the speedy conclusion of an investigation and the chances of the delinquent officials dying of old age during this long-drawn investigation are far greater than them suffering any penalty or punishment.
The proceedings of a Lokpal as envisaged by the government are not judicial or quasi-judicial in nature. Therefore, one opportunity to the public servant to make his comments on the complaint is all that may be needed to satisfy the principles of natural justice, if at all that principle applies to such proceedings. (When police investigates corruption cases — as is the case usually — no one can invoke natural justice.) The public servant concerned will have ample opportunities to present his case before the departmental proceedings or, alternatively, before the Special Court.
In contrast, Mr Hazare’s Jan Lokpal Bill gives the Lokpal the power to dismiss, remove or demote a government servant. The bill provides for the constitution of a bench of judicial officers to conduct an inquiry against a public servant for imposition of penalty, in consonance with Article 311, which is the civil servants’ shield against arbitrary departmental punishment.
Jan Lokpal Bill no doubt makes provisions for overseeing the Lokpal through the judiciary. This safeguard would have been meaningful but for the fact that judges can be proceeded against with the consent of seven of the 11 Jan Lokpals, even suo motu. I am reminded here of a series of hockey matches between India and Pakistan played some decades ago officiated by an Indian umpire at one end and a Pakistani at the other. Predictably, the umpires vied with each other in awarding penalty strokes.
The long catalogue of powers and functions of the Jan Lokpal is terrifying; it has the potential of turning Lokpal into a hungry monster. The “official” Lokpal, on the other hand, will be just another meaningless bureaucratic hassle, pretending to investigate corrupt officials. It is time that both sides made a sincere attempt to thrash out a new draft.

K.N. Bhat is a senior advocate in the Supreme Court of India and former
additional solicitor-general of India