The Hindu: National: Saturday,
April 22, 2017.
When will
the government operationalise the Lokpal law, even in its diluted form?
In a hearing
recently regarding non-operationalisation of the Lokpal and Lokayuktas Act,
more than three years after the law was enacted, Attorney General Mukul Rohatgi
reportedly argued in the Supreme Court that the court has no powers to direct
the government on when and how the law should be enforced.
Failure to
implement the Lokpal law by the Bharatiya Janata Party government is an
indication of how the party is reneging with impunity on its poll promise of a
corruption-free India. A lack of will on the part of the government to
implement the anti-corruption law can be inferred from its various actions and
inactions in the last three years.
With the
government’s refusal to recognise anyone as the Leader of the Opposition (LoP)
after the general election in 2014, the appointment of the Lokpal became an immediate
casualty as the selection committee of the Lokpal includes the recognised LoP.
In order to operationalise the law, the government had its task cut out
introduce a Lokpal amendment Bill in Parliament substituting the recognised LoP
in the selection committee with the leader of the single largest Opposition
party in the Lok Sabha. In fact, a similar amendment was required in the Delhi
Special Police Establishment Act for the appointment of the CBI Director; it
was introduced by the government and passed expeditiously. However, for the
Lokpal law, instead of bringing in a single amendment to alter the composition
of the selection committee, the government introduced a 10-page Bill which
proposed to fundamentally dilute the original law. Given the controversial
nature of amendments, it was referred to a parliamentary standing committee.
The Bill continues to languish in Parliament.
Diluting
asset disclosure
The Lokpal
Act stipulated that by July 31, 2016, Section 44 related to disclosure of
assets of public servants was to be operationalised irrespective of appointment
of the Lokpal. To prevent the asset disclosure provision from taking effect,
the government introduced another amendment Bill. This Bill, which completely
whittled down the asset disclosure requirement, was resolutely pushed through
by the government in Parliament and passed within 48 hours of its introduction.
MPs from various political parties, who expressed concern that the amendments
would dilute the original law, were assured by the Minister that once the Bill
was passed it would be referred to a parliamentary standing committee for
deliberation. It is significant that the Bill, pushed through in unprecedented
haste, did not modify the composition of the selection committee which was
needed to appoint the Lokpal.
The law was
thus diluted even before it could be operationalised. The Lokpal Amendment Act,
2016, did away with the statutory requirement of public servants to disclose
the assets of their spouses and dependent children provided for under the
original law. It also dispensed with the need for public disclosure of these
statements and empowered the Central government to prescribe the form and
manner of asset disclosure. This was a critical blow as the Lokpal was
established to act on complaints under the Prevention of Corruption Act (PCA);
one of the grounds of criminal misconduct under the PCA relates to a public
servant or any person on his/her behalf being in possession of pecuniary
resources or property disproportionate to known sources of income. Since
illegally amassed assets are often handed over to family members, public
declaration of assets of the spouse and dependent children of the public
servants was necessary to enable people to make informed complaints to the Lokpal.
Further, the
response to a query under the RTI Act revealed that the Minister had misled
Parliament. Despite the Minister’s assurances on the floor of the House, the
Lokpal Amendment Act, 2016, passed by Parliament was never referred to any
parliamentary standing committee for deliberation.
Permission
for prosecution
The
government’s intention to subvert the Lokpal law was further confirmed when
through proposed amendments to the PCA, it sought to usurp critical powers of
the Lokpal. Experience in India has shown that the requirement for seeking
prior sanction from the government for prosecuting government officials is a
critical bottleneck and results not only in huge delays but also, and often, in
the accused never being prosecuted. To address this problem, the Lokpal Act
vests the power of granting sanction for prosecution in the independent
institution of the Lokpal. Instead of reinforcing this provision, which
insulates the prosecution process from government influence, the PCA amendments
strengthen the requirement to seek the government’s permission before
prosecuting a public servant by increasing cover to even retired public
officials. By requiring the Lokpal to seek permission from the government
before it can prosecute officials in cases of corruption, the proposed PCA
amendments make a mockery of the independent institution and render the entire
exercise of demanding an empowered Lokpal futile.
So when can
the people of India reasonably expect the Modi government to operationalise the
Lokpal law, even in its diluted form? Perhaps not anytime soon, if the
statement of the Attorney General in the Supreme Court is anything to go by,
wherein he cited the Delhi Rent Control Act which has not been implemented for
30 years.
(Anjali
Bhardwaj and Amrita Johri are members of the National Campaign for Peoples’
Right to Information)
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