Saturday, August 27, 2011

Model Lokpal Bill

Every government is expected to provide good and corruption-free governance to its citizens.  When it fails to do so, people demand the appointment of a Lokpal to mitigate their sufferings.  India is passing through this stage at the present moment.

The Institution of Lokpal is not a substitute for existing instruments of governance, nor is it an alternative to the judicial process.  At best, it is an adjunct of the governing process.

Obviously, there cannot be a single Lokpal for the whole country, covering all aspects of governance.  The need of the hour is to adopt a model Lokpal Bill which can be modified to suit different requirements of governance.

For example, from the point of view of governance, the three important pillars of the Indian Constitution are the legislature, the executive and the judiciary.  Each of these organs of the Constitution are independent and act as ‘checks and balances’ on each other.  Unfortunately, there is corruption and poor governance in all these institutions.  Since each of these bodies requires special skills and competences, we require three different Lokpals for them – not one.

India is a federation of States with a unitary form of government at the Centre.   There is division of labour between the Centre and the States.  The States collect taxes from people on behalf of the Centre and the Centre allocates resources to the States.  Since most of the public utilities come under the State government  or local bodies, the common man is affected by what happens at the local or State level.  If the States are to be governed by a Lokpal sitting at the Centre, it will make very little difference to the lives of people living at the village, town and State level.  Therefore, we require a separate Lokpal for each of the States. 

Most of the grievances of the common man have to do with bureaucracy – both at the Centre and in the States. 

Again, from the point of view of governance, bureaucracy can be divided into two parts – one, those who administer at the lower level and two, those who make policy and take decisions at the higher level.  Dissatisfaction with governance at the lower level is in the form of grievances, such as delays, harassment, bribery, etc., whereas dissatisfaction at the higher level is in the form of corruption, such as fraud, misappropriation of resources, misuse of office, favouritism, collection by way of commission, etc.  Now, we require a different Lokpal for the lower bureaucracy and one for bureaucrats at the higher level.  The one at the lower level will supervise, control and punish, while one at the higher level requires greater authority and sophistication to deal with professionals and not interfere with their decision-making and risk-taking capabilities.  In other words, we require a different type of Lokpal for the lower bureaucracy and a different one for the higher bureaucracy.

So far as legislators are concerned, the Lokpal will have to make a distinction between those who are elected members of legislative bodies and those who form part of the Civil Society.  Elected members of legislative bodies are governed by a different set of rules and regulations, so far as their work regarding law-making is concerned.  In other areas, they need to be governed by common law.  Here again, we require a different type of Lokpal.

The case of judiciary is totally different.  The judiciary not only upholds rule of law, but also interprets law and oversees the functioning of both the legislature and executive in accordance with the provisions of the Constitution.  This requires a type of Lokpal who understands the functioning of the judiciary and is also an expert in Constitutional law.

Should the Prime Minister be under the purview of the Lokpal Bill?  My answer is yes, subject to the privileges which he enjoys as a Member of Parliament.  As things stand at present, the Prime Minister of India is the most powerful person in the country.  He has the army, police, paramilitary forces, CBI, RAW, CVC, Income Tax Department, Enforcement Department, etc., all under him.  Not only that, even the President of India is bound to act according to the aid and advice of the Prime Minister and his cabinet.  Under these circumstances if a person takes it into his head to overpower his adversaries, including members of his own political party, there is no stopping him or her from doing that.  So, there must be some sort of control of the unlimited powers of the Prime Minister.  Should there be frivolous or false allegations against the Prime Minister, he should be empowered to take legal action against those persons who make such allegations and get them punished.

So far as the three conditions raised by Shri Anna Hazare are concerned, it is not difficult to meet them.  Setting up Lokayuktas in States should be implemented with the consent of the States, if possible, and by law, if necessary. The Lokayuktas in States will, of course, have jurisdiction over the lower bureaucracy.

Having a citizens’ charter should not be problematic.  We are already having the Right to Information Act and the citizens’ charter can be added to that.  Even, otherwise, it is an administrative measure.

To sum up, it is the responsibility of every government to provide a clean, efficient and corruption-free government to its citizens.  In case this is not possible for one reason or another, the government should appoint Lokpal to mitigate people’s sufferings.  The institution of Lokpal should not be a replacement of the existing instruments of governance but an additional help in governance.  There should be separate Lokpals for judiciary, elected representatives and bureaucracy.    The Prime Minister should come under the purview of the Lokpal Bill, subject to certain specific conditions.  It should be applicable both to the Centre and States, higher as well as lower bureaucracy.

I don’t think it is desirable to make the institution of Lokpal a constitutional body like Election Commission.  If that happens, it will act in competition with the existing institutions of governance and will hamper good governance in the long run.  Moreover, it will require a constitutional amendment which requires two-third majority of Members of Parliament voting for the amendment and which is not possible in the near future.

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