Lokpal Amendment Bill 2014, a virtual undoing of the parent Act

[Chitta Behera]

Lokpal Amendment Bill 2014, a virtual undoing of the parent Act

It seems most of the civil society persons and groups including esteemed Anna Hazare, Justice Hegde, Shanti Bushan, Prasant Bhusan, Medha Patkar, Arvind Kejriwal, Kiran Vedi, Aruna Roy and CHRI team are still unaware of the dangerous provisions mooted in ‘The Lokpal and Lokayuktas and other related law (Amendment) Bill, 2014’ which was introduced in Lok Sabha on 18 December 2014 last. Soon after its introduction, the Bill was referred to the concerned Parliamentary Standing Committee, which would submit its report within 3 months from the date of referral. From the scanty coverage that the Bill could bag in the national media, most of the readers have innocently thought that the Bill merely aimed at removing a technical snag around the much debated issue of ‘leader of opposition’ on account of which the Lokpal Selection Committee headed by the PM didn’t even sit for once till date. The Bill of course provides that in absence of the leader of the opposition in technical sense, the leader of the single largest opposition party in Lok Sabha would be taken as a member in the Lokpal Selection Committee. On a closure scrutiny, this very provision, which is otherwise an established convention in our system of parliamentary democracy, could have been mandated by the Central Government under Section 62 of the parent Act (Power to remove difficulties), instead of going through a time consuming and cumbersome route of amendment to the Act itself.

But the Amendment Bill doesn’t stop at removing the above snag. Anybody going through the Bill would be dismayed to notice that it goes far beyond the minor issue of redefining ‘the leader opposition’ and seeks to nullify the very quintessence of the parent Lokpal Act, for which anti-corruption crusaders with Anna Hazare in forefront had waged an arduous country wide battle with political class in not-so-distant past. That quintessence is the reconstitution of CBI the country’s prime investigating agency into a strong but independent and autonomous body capable of investigating and prosecuting any case of corruption alleged against a public servant freely, fairly and fearlessly. In order to impart such a new Avatar to the CBI, the Central Lokpal Act 2013 had carried out some crucial amendments to the Delhi Special Police Establishment Act 1946 the law that primarily governs the constitution and functioning of CBI. As is well known, the present Government at Centre chose to delay the implementation of the provisions of the Act for quite some months on the plea of ‘absence of leader of opposition’ and when that trick became unworkable due to strident criticism from very many quarters including Supreme Court, they have taken to the new and a more cunning route of amending the concerned provisions of parent Act via the present Bill. In case the concerned provisions of the present Bill get passed by the Parliament, the whole nation shall be left with a virtually weakened, truncated and divided CBI, even if the Director CBI continues to formally enjoy the freedom and independence thanks to the provision of his selection by a 3-meber apex body comprising Prime Minister, Leader of Opposition and Chief Justice of Supreme Court.

In the parent Lokpal Act the DSPE Act was suitably amended to provide for a strong and integrated CBI with its Director exercising ‘overall supervision and control’ over the Director Prosecution, so that any allegation of corruption if found genuine as per the investigation carried out by the Director CBI, would be subject to prosecution by the Director Prosecution and the guilty punished in a time-bound manner as laid down under the Lokpal Act. But the Amendment Bill has removed the clause providing for overall supervision and control of Director CBI over the Director Prosecution and replaced it by a queer provision which reads, “In case of difference of opinion between the Director and the Director of Prosecution, the matter shall be referred to the Attorney-General for India for his advice and such advice shall be binding”. Thus the Amendment Bill creates enough space for differences of opinion to crop up between two Directors, by virtue of which the Director Prosecution may refuse to carry out the recommendation of Director CBI for prosecuting a public servant proved corrupt on the conclusion of investigation by the latter. Not only that. The Amendment Bill provides for such differences of opinion to be referred to the Attorney-General whose advice shall be binding on all concerned. Needless to say, the Attorney-General of India like his state counterpart the Advocate General, is a Government appointee and therefore can’t go against the intentions of the Government-that-be in any matter concerning prosecution. Should the above Bill get passed by the Parliament, it is the Government of the day the real boss of the Attorney General, whose unwritten fancies and fiats would rule the roost as regards whether to prosecute or not a proven case of corruption. Endowing the Attorney-General with such final authority as the amendment Bill does, shall doubtless pave for complete reentry of the Government albeit through a backdoor into the CBI set-up as the supreme arbiter over all matters concerning prosecution. A perturbing question now looms large- what is the use of holding a fair and impartial investigation under the aegis of an independent and autonomous body called CBI, if the Attorney-General or for that matter the ruling elite can simply say a flat no to the need for prosecuting and punishing the concerned public servant proved guilty by such investigation? The Amendment Bill, if enacted into law, shall land up the whole nation in a quixotic situation, where a thief caught shall be set free, only because the Government wishes so.

 

Besides, to render foolproof the Government’s hegemony over the entire field of prosecution of the corrupt, the Amendment Bill provides, “The annual performance appraisal report of the Director of Prosecution shall be recorded and maintained in the Ministry of Law and Justice, in such manner as may be prescribed.” That being so, is there even a remote chance where the Director Prosecution shall follow a course other than the one wished by the Government.    

 

There are of course some other provisions in the Amendment Bill which would dilute the letter and spirit of the landmark anti-corruption law Lokpal and Lokayuktas Act 2013 and which therefore necessitate a critical appraisal by all concerned. However, of all the new dispensations mooted in the Bill, the ones providing for both direct and indirect subjugation of Director of Prosecution under the Central Government as mentioned above are most ominous amounting to virtual undoing of the historic Lokpal and Lokayuktas Act 2013.     

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The above critique ‘The Lokpal and Lokayuktas and other related law (Amendment) Bill, 2014’ had emerged from the deliberations of Odisha Lokayukta Abhijan’s Consultation Meet on Lokpal Amendment Bill 2014 and Odisha Lokyukta Act 2014 held on 1^st February 2015 at Bhubaneswar vide the Minutes of the Meet attached herewith- Chitta Behera (0943577546)