NATIONAL CAMPAIGN FOR PEOPLE’S RIGHT TO INFORMATION (NCPRI) INITIAL RESPONSE TO THE JOINT PARLIAMENTARY COMMITTEE REPORT ON LOKPAL Grievance Redress We broadly welcome the committee’s recommendations relating to grievance redress, especially the very thoughtful commitment of the committee that if a draft Grievance Redress Bill is referred to it, it would receive the committee’s urgent attention. We also welcome specifically the recommendation that such an enactment, should cover all States ; and that its functioning could be synchronised with that of the RTI Act. We are, however, concerned about the committee’s recommendation that services involving constraints of supply (like water or power) should be excluded or have only limited mention in the citizen’s charter. We suggest that, instead, there should be a general disclaimer in all citizen’s charters that non-provision due to limited resources would become a grievance when it is in violation of relevant laws, policies and standards and despite legitimate entitlements. Lokayuktas in the States We welcome the committee’s recommendation that the institution of Lokayuktas be created in the states under this law, in order to ensure conformity. Permission for Investigation and Prosecution We warmly welcome the recommendation that the requirement of seeking prior sanction/permission for investigations or prosecutions be discontinued across the board. False Complaints and Punitive Measures We welcome the recommendation of the committee to drop the very stringent punishment provided in the bill for false and vexatious or frivolous complaints. However, we are concerned that the committee thought fit to retain imprisonment as a possible penalty. We recommend that if there has to be imprisonment of any description or length, it should be only when a person has been proved to have knowingly filed a false complaint with malicious intent. Judicial Accountability We welcome the committee’s recommendation that there should be separate National Judicial Commission that looks after the appointment, transfer and criminal prosecution of judges. Selection Process We welcome the suggestion of the committee to have a five member selection committee.
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Constitutional Status We welcome the recommendation of the committee to constitute both the Lokpal and the Lokayuktas as constitutional bodies. We further welcome the recommendation that the grievance redress machinery also be given a similar constitutional status. Whistle Blowers We very much welcome the recommendation of the committee that a strengthened whistle blowers bill must be introduced in Parliament “simultaneously and concurrently� with the Lokpal Bill . Complaints against the Lokpal We are concerned that the committee has supported the government’s proposed system of complaints against the Lokpal being processed by the government. Though the committee has tried to provide a safeguard which would allow a complainant to move the Supreme Court in case a complaint was not acted upon, there still remains the ability of the government to compromise the independence of members of the Lokpal by being able to manipulate the process by which complaints against them are handled. Role of the Chairperson We welcome the recommendation of the committee that the Chairman of the Lokpal should not be given arbitrary powers to transfer cases from one bench to another. Religious Bodies We welcome the recommendation that religious bodies should not be excluded from the purview of the Lokpal . Group C (and D) Staff We strongly feel that putting group C (and D) staff under the original jurisdiction of the CVC is an unfortunate step that would significantly and adversely affect the interest of millions of Indians, especially the poor and marginalised segments of society, whose primary interaction is with these categories of public servants. The sheer numbers of C (and D) staff would make it impossible for a single institution to deal with them effectively. Besides, as group C Central Government staff are, for example, located in post-offices in rural areas around the country, in order to be even minimally accessible and effective, the CVC would have to open thousands of thanas in rural areas to receive complaints and to investigate them. Apart from the huge requirement of staff and resources, this would mean that in most of the rural areas of India there would now be three thanas instead of one: the CVC thana, the Lokayukta or State Vigilance Commission thana (for state government group C staff), and the existing police thana. Apart from the costs, this would also impose an intolerable burden on the local populace. We would again commend the alternate that we had suggested, where the Lokpal and the state lokayuktas, as per a geographical jurisdiction, had review jurisdiction over this category of staff, the original jurisdiction being that of the police.
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Consequently, all complaints under the PC Act, against group C staff, would be filed with the local police station, irrespective of whether the accused was state or central government employee. If the investigation was not conducted properly or in a time bound manner by the police, then the district level office of the Lokpal (in centrally administered areas) and of the Lokayukta (in states) would have a review jurisdiction and even the right to take over the investigation. There would be a protocol laying down the procedures and time lines for investigation, perhaps based on the existing CBI manual. Any complainant would have the right to approach the district office of the Lokpal/lokayukta if the police did not record their complaint, were not investigating it as prescribed in the protocol, or were not investigating it within the time frames prescribed. The Lokpal/lokayukta district office would have the obligation to examine the complaint and, after giving the concerned investigating officer a chance to be heard, either reject the complaint or take up the complaint/take over the investigation. In case it takes up the complaint/investigation, it must also fix responsibility for the non-acceptance of the complaint/deficiency or delay in investigation. In those cases where it is not obvious whether the accused is a group A or B official, or group C (or D) staff, or where the complainant is not clear whether the complaint should be directly to the Lokpal/Lokayukta or to the police, the complaint can be filed with either. It would be the responsibility of the complaint-receiving agency to send the complaint to the concerned agency, if it does not prima facie fall in their jurisdiction. Such a system would make it much easier to deal with the total number of complaints, as the load would now be shared between 29 Lokpals and Lokayuktas, and over 30 state and union territory police forces, the latter with local presence. This system would also ensure that the elected Parliament, Legislative Assemblies and governments were not by passed in the very important task of investigating and prosecuting corruption. Status of the CBI We strongly oppose the recommendation that the Central Bureau of Investigation (CBI) be kept outside the administrative control of the Lokpal and perhaps made independent of the government also. We believe that a Lokpal, without an independent investigative agency under its administrative control, is no Lokpal. We also think it a very bad idea to unleash on the nation a police agency, like the CBI, without giving a civilian agency, like the Lokpal, effective control over it. Police agencies that do not have political or community control can easily end up functioning like a “secret police” or “gestapo” and wielding undue and frightening power over the rest of the society and the government itself. Giving “superintendence” over the CBI to the Lokpal serves little purpose if the administrative control is with somewhere else. This is evident from the very ineffective superintendence that the CVC currently exercises over the CBI. Therefore, we strongly recommend that either the CBI be placed under the administrative control of the Lokpal and divested of all responsibilities other than investigating complaints under the PC Act, or the Lokpal be provided its own investigative agency with exclusive jurisdiction over group A and B officers for the PC Act. Another alternative is that the CBI be bifurcated and the personnel dealing 3
with anti-corruption cases (we understand around 80%) be placed with the Lokpal, and the remaining be either attached to some other organisation or remain as the CBI without jurisdiction on PC Act. We, however, welcome the recommendation that the preliminary inquiry and the investigation be independent of each other and that there be no interference in the process of investigation. Reservations for Marginalised Groups We would strongly recommend that either a certain number of positions of members of the Lokpal/Lokayukta be reserved for members of the SC/ST, and for religious minorities and women, or that wherever everything is equal, preference be given to candidates belonging to one or more of these categories. The staff of the Lokpal/Lokayukata would, of course have reservations as per the current government policy. Expanding the definition of corruption to more effectively cover NGOs and the corporate sector We would once again urge the Government to consider amending the Prevention of Corruption Act to include, under the definition of corruption, the following:
Where any entity, including but not restricted to a private body, corporation or profit seeking entity, or any NGO that receives from any public authority any grants, concession or dispensation, including but not restricted to licences, subsidies, contracts, orders, quotas, allocations, clearances, etc, where such a receipt is in violation of the law or of any prevailing rules, it would be deemed to have indulged in corrupt practices.
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