Waiting for the Lokpal

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