ARTICLES FROM THE SUNDAY GUARDIAN
Copyright. All rights reserved. Ram Jethmalani. 2017.
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Continuing my reflections on the Lokpal Act, let me now inform my readers how complaints against the Prime Minister are dealt with. As I explained in my last piece (Many black holes in Lokpal Act, 16 February), comments from the public servant must be obtained on any complaint made against him/her by the Lokpal, so as to determine whether there exists a prima facie case for investigation. And this includes the Prime Minister.
But as per the definition given in Section 2(1) (c), the competent authority to provide such comments in relation to the Prime Minister is curiously the House of the People. And how exactly the comments of the House of People have to be obtained in such a situation has not been detailed in the Act, and therefore lie completely in the realm of reasonable conjecture. Does it mean that the comments of every individual Lok Sabha MP have to be obtained, and the majority comments are communicated in the form of a resolution? If so, it becomes just another House vote, with every chance of a voice vote, whether the House is in order or chaos, and a foregone conclusion that the Prime Minister, who in all likelihood enjoys support of the majority in the House, would get the comments or resolution in his favour. The Act remains silent on whether the Lokpal can go ahead with the investigation if he disagrees with the comments of the House of People, in whatever form they come. This is yet another black hole that is bound to be a major cause for confusion, delay and derailment, when it comes to complaints against the Prime Minister. One may recall how the Bofors probe was completely frustrated by the majority principle followed by Joint Parliamentary Committees.
Sub-sections (5), (6) and (7) of Section 20 deal with investigation by the agency authorised by the Lokpal to investigate, and further action on such investigation report. Subsection (7) of Section 20 requires the bench of the Lokpal to consider such investigation report, only after obtaining "the comments of the competent authority and the public servant" (for the second time) before it grants sanction to its prosecution wing or investigation agency to file a charge sheet or closure report before the special court. Could it be just a lapse in legislation that while under Subsection (2) of Section (20), (the first time that the comments of the public servant are called for before commencement of investigation) a time limit of 60 days is specified, there is no such time frame stipulated under Subsection (7) of Section 20 under which sanction for prosecution must be granted? What powers does the Lokpal have if the comments of the public servant/competent authority for the Prime Minister get delayed for months or years? There are no answers in the Act. Further, if the competent authority in the case of the Prime Minister, i.e. the House of the People were to tender an opinion that no case for prosecution was made out, does the Lokpal still have the power to go ahead with giving sanction to prosecute the Prime Minister if he disagrees with the views of the "competent authority"? The black holes gather.
I had written in my piece on 24 June 2012, that in order to ensure that Lokpal consists of people with impeccable integrity and outstanding ability, the Selection Committee before sending their recommendations to the President should publicise the names of the persons selected by them and leave them in the public domain for a period of at least one month before sending the recommendation. In this period of one month, any citizen of the country should have the freedom to bring to the notice of the Selection Committee any matter pertaining to the persons so selected, which would render them ineligible to occupy such an august post. In the past, we have had embarrassing cases where recommendations were made to appoint persons as CVC or a High Court or Supreme Court judge without a thorough search of their background. During the period of this one month, if any citizen brings any information which may render such candidate ineligible to become a member or chairperson to the notice of the Selection Committee, the Selection Committee should get such information verified with utmost alacrity, before making a final recommendation to the President for appointing them.
Section 53 bars any inquiry or investigation into any complaint if it is made after the expiry of seven years from the date of commission of the offence contained in the complaint. This prohibition should be removed lock, stock and barrel. All it means is that if a corrupt public servant has managed to suppress the evidence of wrongdoing for seven years, he attains immunity from complaint thereafter, and can peacefully enjoy the fruits of his corruption. The corrupt deeds of the public servants lie deeply hidden inside government files. They emerge generally when there is a change in the government, provided they have not been "lost" like the coal scam files, or destroyed by corrupt public servants before they vacate their offices. As long as the delinquent public servant is alive and the evidence is available on record, he/she should not be enabled to escape even after the prescribed period of seven years. As it is, as per Section 46, anyone making a "false and frivolous or vexatious complaint" can be punished with imprisonment up to one year and a fine up to Rs 1 lakh. This is deterrent enough for even the most active crusader against corruption from filing a complaint under this Act. Both Sections 46 and 53 put together completely debilitate the war against corruption. Besides, the Law Commission and Parliament have not approved of periods of limitation for serious offences punishable with more than three years' imprisonment. This policy is apparent from Section 468 of the Code of Criminal Procedure.
The most important and heinous crime of corruption against the nation is the billions of dollars estimated by responsible bodies to be of the volume of US $1,500 billion, roughly equivalent now to Rs 90 lakh crore, stashed by the corrupt in safe tax havens shielded by immunity rules of customer confidentiality. All these criminals just might go scot-free by the time the new government to be sworn in later this year with certainty discovers their identity and collects evidence to send them where they belong.
Section 59 stipulates that the Central government may make rules to carry out the provisions of the Act, and Section 61 stipulates that every rule thus made shall be laid before each House of Parliament. We are not aware whether the rules have been drafted and placed before Parliament, currently in session. However, the government has already commenced the process of selection of the Lokpal, taking umbrage under the immunity provided in this section to anything done prior to the rules being notified.
This act of government to rush through the formation of the Lokpal without first getting the rules approved by Parliament, certainly casts doubts regarding its bona-fides. It also shows how easily pleased is our Anna Hazare for whom I have tremendous respect and affection. It was great and noble of him to risk death if his demand for a Lokpal was not conceded. But then, before quickly terminating his self torture, it would perhaps have been wise if he had carefully seen whether he got what he had risked his life for. I am not inviting another fast but he should carefully evaluate what he has got and honestly tell the nation that he has perhaps fallen into the gullibility trap as most good men do.