Lokpal Amendment Bill 2014, a virtual undoing of the parent Act

It seems most of the civil society persons and groups including esteemed Anna Hazare, Justice Hegde, Shanti Bushan, Prasant Bhusan, Medha Patkar, Arvind Kejriwal, Kiran Vedi, Aruna Roy and CHRI team are still unaware of the dangerous provisions mooted in ‘The Lokpal and Lokayuktas and other related law (Amendment) Bill, 2014’ which was introduced in Lok Sabha on 18 December 2014 last. Soon after its introduction, the Bill was referred to the concerned Parliamentary Standing Committee, which would submit its report within 3 months from the date of referral. From the scanty coverage that the Bill could bag in the national media, most of the readers have innocently thought that the Bill merely aimed at removing a technical snag around the much debated issue of ‘leader of opposition’ on account of which the Lokpal Selection Committee headed by the PM didn’t even sit for once till date. The Bill of course provides that in absence of the leader of the opposition in technical sense, the leader of the single largest opposition party in Lok Sabha would be taken as a member in the Lokpal Selection Committee. On a closure scrutiny, this very provision, which is otherwise an established convention in our system of parliamentary democracy, could have been mandated by the Central Government under Section 62 of the parent Act (Power to remove difficulties), instead of going through a time consuming and cumbersome route of amendment to the Act itself.

But the Amendment Bill doesn’t stop at removing the above snag. Anybody going through the Bill would be dismayed to notice that it goes far beyond the minor issue of redefining ‘the leader opposition’ and seeks to nullify the very quintessence of the parent Lokpal Act, for which anti-corruption crusaders with Anna Hazare in forefront had waged an arduous country wide battle with political class in not-so-distant past. That quintessence is the reconstitution of CBI the country’s prime investigating agency into a strong but independent and autonomous body capable of investigating and prosecuting any case of corruption alleged against a public servant freely, fairly and fearlessly.

In order to impart such a new Avatar to the CBI, the Central Lokpal Act 2013 had carried out some crucial amendments to the Delhi Special Police Establishment Act 1946 the law that primarily governs the constitution and functioning of CBI. As is well known, the present Government at Centre chose to delay the implementation of the provisions of the Act for quite some months on the plea of ‘absence of leader of opposition’ and when that trick became unworkable due to strident criticism from very many quarters including Supreme Court, they have taken to the new and a more cunning route of amending the concerned provisions of parent Act via the present Bill. In case the concerned provisions of the present Bill get passed by the Parliament, the whole nation shall be left with a virtually weakened, truncated and divided CBI, even if the Director CBI continues to formally enjoy the freedom and independence thanks to the provision of his selection by a 3-meber apex body comprising Prime Minister, Leader of Opposition and Chief Justice of Supreme Court.

In the parent Lokpal Act the DSPE Act was suitably amended to provide for a strong and integrated CBI with its Director exercising ‘overall supervision and control’ over the Director Prosecution, so that any allegation of corruption if found genuine as per the investigation carried out by the Director CBI, would be subject to prosecution by the Director Prosecution and the guilty punished in a time-bound manner as laid down under the Lokpal Act. But the Amendment Bill has removed the clause providing for overall supervision and control of Director CBI over the Director Prosecution and replaced it by a queer provision which reads, “In case of difference of opinion between the Director and the Director of Prosecution, the matter shall be referred to the Attorney-General for India for his advice and such advice shall be binding”. Thus the Amendment Bill creates enough space for differences of opinion to crop up between two Directors, by virtue of which the Director Prosecution may refuse to carry out the recommendation of Director CBI for prosecuting a public servant proved corrupt on the conclusion of investigation by the latter. Not only that.

The Amendment Bill provides for such differences of opinion to be referred to the Attorney-General whose advice shall be binding on all concerned. Needless to say, the Attorney-General of India like his state counterpart the Advocate General, is a Government appointee and therefore can’t go against the intentions of the Government-that-be in any matter concerning prosecution. Should the above Bill get passed by the Parliament, it is the Government of the day the real boss of the Attorney General, whose unwritten fancies and fiats would rule the roost as regards whether to prosecute or not a proven case of corruption. Endowing the Attorney-General with such final authority as the amendment Bill does, shall doubtless pave for complete reentry of the Government albeit through a backdoor into the CBI set-up as the supreme arbiter over all matters concerning prosecution. A perturbing question now looms large- what is the use of holding a fair and impartial investigation under the aegis of an independent and autonomous body called CBI, if the Attorney-General or for that matter the ruling elite can simply say a flat no to the need for prosecuting and punishing the concerned public servant proved guilty by such investigation? The Amendment Bill, if enacted into law, shall land up the whole nation in a quixotic situation, where a thief caught shall be set free, only because the Government wishes so.

The Amendment Bill provides, “The annual performance appraisal report of the Director of Prosecution shall be recorded and maintained in the Ministry of Law and Justice, in such manner as may be prescribed.” That being so, is there even a remote chance where the Director Prosecution shall follow a course other than the one wished by the Government.

There are of course some other provisions in the Amendment Bill which would dilute the letter and spirit of the landmark anti-corruption law Lokpal and Lokayuktas Act 2013 and which therefore necessitate a critical appraisal by all concerned. However, of all the new dispensations mooted in the Bill, the ones providing for both direct and indirect subjugation of Director of Prosecution under the Central Government as mentioned above are most ominous amounting to virtual undoing of the historic Lokpal and Lokayuktas Act 2013.

The Lokpal Act 2013 amended the DSPE Act 1946 (that governs the constitution and functioning of country’s premier investigating agency viz. CBI) with a view to ensuring that the Director CBI in order to act freely, fairly and fearlessly in investigating any case of corruption referred to him by Lokpal or any other competent authority (such as Supreme Court, any of the High Courts, Central Government or any State Government ) would henceforth be selected by an apex committee comprising PM, Leader of Opposition and Chief Justice of India (in fulfilment of a long standing demand for several decades for transforming CBI from a servile tool of the Government to an independent and autonomous body, that served as the main driver of recently unfolded Anna inspired anti-corruption movement culminating in enactment of Lokpal Act 2013). Secondly the Act of 2013 also ensured that every complaint of corruption held genuine through enquiry and investigation by the Director CBI would be subject to prosecution by the Director Prosecution in the designated Courts for punishing the corrupt public servants in a time-bound manner as laid down in the said Act. To achieve this integrated objective i.e. completion of investigation immediately followed by the prosecution, the Act of 2013 justifiably made the provision in 4BA (2) of DSPE Act that ‘The Director of Prosecution shall function under the overall supervision and control of Director’ (meaning Director CBI). In fact this Act created a new Directorate of Prosecution within the DSPE structure, with its focus being the time-bound prosecution and punishment of the public servants held guilty of corruption by the investigation conducted by the CBI. Argued from a reverse position, in the absence of a dedicated prosecution directorate to work under the control of Director CBI the very promise of the Lokpal Act for a time-bound punishment to the corrupt public servants would remain only a pipedream.

It seems the NCPRI has erred in confusing the Director Prosecution mentioned in the Amendment to DSPE Act (Section 4BA) effected by Lokpal Act 2013, with the Director Prosecution mentioned in Section 12 (Prosecution Wing) of the said Act. Let it be made absolutely clear that these two Directors of Prosecution are not the one and same entity, but two separate entities having two separate modes of appointment and two separate mandates. While the latter (Section 12 of Lokpal Act) is a wing of Lokpal constituted by Lokpal itself with the sole mandate to prosecute the cases of corruption on the orders of Lokpal, the former (Section 4BA of DSPE Act) though bearing the same nomenclature i.e. Director Prosecution, happens to be the head of a Directorate of Prosecution, to be appointed on the recommendation of CVC but to function under the control and supervision of Director CBI, for the purpose of prosecuting not only the cases of corruption if and when referred by Lokpal (vide Section 20-8) but also for prosecuting all cases of crime including that of corruption on the orders of Director CBI. Thus the Director Prosecution acting under the Director CBI (Section 4BA of DSPE Act) has a much wider mandate than that of Director Prosecution acting under Lokpal (Section 12 of Lokpal Act). It goes to the credit of Lokpal Act 2013 that this Act true to its all-encompassing anti-corruption mission, provided for a dedicated prosecution directorate for CBI while putting in place a dedicated prosecution wing for Lokpal.

It is however disconcerting to note that the Lokpal Amendment Bill 2014 very cunningly seeks to dismantle the integrated investigation-cum-prosecution system which finds embodied in the single, reconstituted structure of CBI made possible through amendment to DSPE Act 1946 as laid down in the Schedule to the Lokpal Act 2013. Firstly, the Clause 9 of the said Bill deletes the provision of ‘overall control and supervision’ to be exercised by the Director CBI over the Director Prosecution, creating thereby necessary space for the Government to exercise the control and supervision over the Director Prosecution. Next, the said Clause of the Bill allows the Director Prosecution to hold differences of opinion from that of the Director CBI, which implies that even if the Director CBI has proved a public servant corrupt through his investigation, the Director Prosecution may simply refuse to prosecute him in the Special Court citing the new clause. In the ensuing standoff between the two Directors the proven case of a corrupt public servant would enjoy the virtual protection from any manner of trial or punishment in the post-investigation period. The next provision of the Clause 9 is further reprehensible since it provides for such differences of opinion to be “referred to the Attorney-General for India for his advice, and his advice shall be final and binding”. Needless to say, the Attorney-General is basically an appointee of the Central Government and therefore whatever advice he would tender in the context of the above differences of opinion can’t but be in line with the wish of the Government-that-be. Further, to render the subjugation of the Director Prosecution under the Governmental control foolproof, the Clause-9 of the Bill provides, “The annual performance appraisal report of the Director of Prosecution shall be recorded and maintained in the Ministry of Law and Justice, in such manner as may be prescribed.". Thus, the Bill aims at reducing the Director Prosecution to a servile tool of the Government, who can render the Director CBI a virtually dysfunctional executive and his charge-sheet against a corrupt public servant meaningless by exercising his right to differences of opinion with Director CBI, by his obligation to adhere to the decision of Attorney General and by his unwritten loyalty to the concerned Ministry of the Central Government which maintains his APAR. The nation would thus be pushed back to the square one, i.e. Governmental control over prosecuting agencies, against which the anti-corruption crusade spanning several decades since mid-sixties of last century had marched forward culminating in the enactment of historic Lokpal and Lokayuktas Act 2013.

As for the question who should maintain whose APAR it is worthwhile to mention that the APAR of a particular public servant should be maintained by his/her controlling authority. In the instant case, therefore the APAR of Director Prosecution working under the control of Director CBI needs to be maintained by the latter, and that of Director Prosecution constituted and working under Lokpal by the Lokpal. The proposal to entrust the maintenance of APAR of Director Prosecution to the Ministry of Law and Justice, GoI aims at making it doubly sure that the Director Prosecution never falters in dancing to the choreography of Central Government.

While the NCPRI’s submission on Lokpal Amendment Bill 2014 is on the whole a valuable critique of the various problematic propositions mooted therein, it seems to lack in a clear understanding of the highly cunning provisions made in Clause 9 of the Bill on the innocuous pretext of providing functional autonomy and independence to the Directorate of Prosecution vis-a-vis Director CBI. I wish the NCPRI fraternity to re-read the Clause and restate its position thereon since this single clause of the Bill has the potential to decimate at one go not only the quintessence of historic Lokpal Act 2013 but also the entire fabric of an independent and autonomous investigating and prosecuting system that the said Lokpal Act had laboriously built up by way of amending several archaic and flawed legislations.

Rajendra Prasad Singh, Ex.M.L.A

Email: [email protected]
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The author is the National Vice President of Hind Mazdoor Sabha, 120, Babar Road, New Delhi-110001 & President of a civil society organization “Bhrastachar Birodhi Abhiyan” based in Odisha, Abhinaba Bidanasi, Sector-10, Cuttack-753014.