Topnotch bureaucracy kept outside the ken of Lokpal and Lokayukta
(A critical lapse in recent Lokpal discourse in Indian Parliament)
Now that the noise around Lokpal and Lokayukta Bill 2011 in both houses of Parliament has cooled off, it deserves of every watchful citizen, whosoever wish to see an effective anti-corruption law emerge at the end of the day, to go for a quick recap of what in fact went by during the eventful days of 27 to 29 December in Delhi's chilly winter. Numerous people like this author, who otherwise couldn't afford the luxury of sitting glued to TV Screens almost 24X7, were however self-urged to do that very thing during those 3 days. Doubtless it speaks volumes of the phenomenal heat that Anna movement generated all over, embracing its supporters and detractors alike. What a spectacle! At one end, a sick but spirited Anna was found fasting on MMRD Ground at Mumbai demanding a strong Lokpal law and at the other, some hundreds of agitated but cunning MPs joining over the issue in an extended duration of Parliament's winter session at Delhi, both obviously forsaking the X-mass festivity. One thing came out in bold relief, much to the glory of our democracy that if and when the members of public, who are the real but invisible masters, would ever want their army of servants including the Members of Parliament to comply with any of their strong wishes, the latter shall perforce and willy-nilly attend to the same, even working overtime.
However, the moot point arises- did the Parliamentarians accomplish the task they had taken on their reluctant shoulders, albeit under the duress of a strident public opinion? The overwhelming response to this all-important question is a negative one, especially going by the fact that the two major players, Congress representing the Government and BJP the opposition, instead of doing necessary introspection, have started trading charges against each other for 'choreographing' the Bill's failure to come through in the winter session. Be that as it may, this failure seems to be a blessing in disguise, in the sense that not only Team Anna but also the MPs belonging to every warring camp would now avail the much needed breathing space to scan in the cool of their study the multifarious and complicated provisions laid down in a barrage of voluminous Bills, all packaged alongside of the Lokpal and Lokayukta Bill, such as the ones on Whistle Blowers Protection, Citizens Grievance Redress and Judicial Standards and Accountability.
As revealed from Rajya Sabha debates, all parties except Congress the mover of the Bill fought it tooth and nail on several grounds, and a couple of such grounds around which there prevailed a near unanimity among the opposition were (1) the constitution of Lokayukta in States to be left to the discretion of the States themselves, and (2) freedom of CBI from Governmental control. While their position on Lokayukta nakedly went against the Sense of House Resolution of 27 August to which they were as much parties as the Congress was, the other position maintained by them was apparently a well-intentioned one and resonated with what Team Anna in fact used to thrust on. But question arises, assuming that the CBI is freed from governmental control and even brought under the administrative control of Lokpal, shall this dispensation render the latter as much a powerful body as it deserves to be?
Answer to this crucial poser is sadly an emphatic no. What shall the Lokpal do with CBI kept at its beck and call, if it has no power at all to enquire, investigate or prosecute the Officers of All India Services like IAS, IPS and IFS? And that is exactly what transpires from a plain reading of the sub-section (4) under Section 23 of the Bill. Section 23 captioned as 'Previous sanction not necessary for investigation and initiating prosecution by Lokpal in certain cases' has a total of 4 sub-sections, out of which the first two are enabling or so to say, empowering provisions for Lokpal, while the remaining two are limiting or so to say disempowering ones. The sub-section (1) does away with any previous sanction or approval from any authority that may be required under Section 197 of CrPC 1973 or Section 6A of DSPE Act 1946 or Section 19 of PoC Act 1988 for the Lokpal before conducting a preliminary inquiry into a complaint of corruption involving a public servant, or before filing of any charge-sheet or closure report on completion of investigation before the Special Court. At tandem with the above the sub-section (2) allows a Special Court, after the charge-sheet is filed, to take cognizance of offence committed by any public servant irrespective of anything contained in Section 197 of CrPC 1973 or Section 19 of PoC Act 1988. Then, the ensuing couple of sub-sections do prescribe exceptions to the above mentioned powers of Lokpal in respect of investigation and prosecution of public servants accused of corruption.
The first exception laid down in sub-section (3) excludes those authorities from the ambit of Lokpal who hold constitutional offices and in respect of whom a procedure for removal has been specified in the constitution itself. Such constitutional authorities are, for instance President, Vice-President, Governor, Chief Justices and Judges of Supreme Court and High Courts, Speakers and C&AG to name a few. But the next exception laid down in sub-section (4) is a very alarming one in view of the fact that it exempts the entire class of topnotch bureaucrats from any liability to investigation or prosecution by Lokpal even if serious allegations of corruption are advanced against them. The sub-section (4) says, "The provisions contained in sub-sections (1), (2) and (3) shall be without prejudice to the generality of the provisions contained in Article 311 and sub-clause (c) of clause (3) of Article 320 of the Constitution".
As a matter of fact, Article 311 of Constitution, by way of prescribing complicated procedures for enquiry, investigation or prosecution, provides a large measure of immunity to the members of civil services of the Union and States and All India Services from imposition of penalties against their acts of corruption. "The constitutional safeguards have in practice acted to shield the guilty against the swift and certain punishment for abuse of public office for private gain. A major corollary has been erosion of accountability. It has accordingly become necessary to revisit the issue of constitutional safeguards under article 311 to ensure that the honest and efficient officials are given the requisite protection but the dishonest are not allowed to prosper in office." (vide Para 6.7.4 Report of the National Commission to Review the Working of the Constitution, 2002). The article 311 being thus the escape route for the corrupt civil servants, the observation of its mandate as underlined in Section 23(4) of the Bill would simply but surely limit Lokpal's jurisdiction to nab such elements.
A superficial reading of sub-clauses (e) and (f) of Section 14(1) of the Bill, which together refers to Groups A, B, C and D officers of Union, has misled many to a general impression that the present Bill brings all categories of civil servants of the Union within the ambit of Lokpal without exception. However, we need to remember that the members of All India Services such as IAS, IPS and IFS stand exempted outside of the aforesaid 4 categories of employees covered under Central Civil Services. In fact, the chief instrument which has delineated group-wise classification of Central Civil Service employees into A, B, C and D Groups is the Central Civil Services (Classification, Control and Appeal) Rules, 1965, and the latter in its Rule-3 (Application) stipulates inter alia that it won't apply to 'any member of the All India Services.' In fact, the members of All India Services are regulated by altogether separate instruments in force, such as All India Services Act 1951 and All India Services (Conduct) Rules, 1968. Coming back to Section 23(4) of the Bill, we notice that even if we, going by the sub-clauses (e) and (f) its Section 14(1) allow for the coverage of civil services of the Union and States as referred under Article-311, to be brought under the investigating and prosecuting ambit of Lokpal, the case of All India Services is still left out there-from.
Further, the Bill in its Part-III (Lokayukta for a State) just in the manner of already referred Section 23(4) does also provide for protection to the civil servants including officers of All India Services from the jurisdiction of Lokayukta. The Section 84(4) occurring in Bill's Chapter-VII (Procedure in respect of Preliminary Enquiry and Investigation) brings out the exemption thus, "The provisions contained in sub-sections (1), (2) and (3) shall be without prejudice to the generality of the provisions contained in article 311 and sub-clause (c) of clause (3) of article 320 of the Constitution".
Now that the real implications of a scrappy reference to Article 311 of Constitution occurring in the contexts of both Lokpal and Lokayukta have been laid bare, the other matter referred therein i.e. Article 320 (3)(c ) needs to be decoded of its real import too. It mandates that the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted "on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters". It simply means that the Lokpal at Centre or the Lokayukta in a State can't advise the concerned public authority on the type of disciplinary action to be taken against a corrupt civil servant of Centre or State without having a consultation with the concerned UPSC or SPSU. Since the Bill doesn't mention any time-limit within which the Commissions shall tender their views in the matter, the task of prosecuting the guilty civil servant by the Lokpal or Lokayukta may hang fire to no end, as witnessed ever in the past.
It is ironical that with everybody from Team Anna to Parliament getting frenzied around 'lower bureaucracy', the shrewdly drafted official Bill shielded the topnotch bureaucracy from the ken of anti-corruption ombudsman altogether. So much so that you may now get a deviant sweeper punished through the route of CVC though, but you can't get a complaint against a corrupt Secretary or Commissioner enquired into by Lokpal or Lokayukta.
Chitta Behera, 4A Jubilee Tower, Choudhury Bazar, Cuttack-9, Mobile- 9437577546, dt 31.122.2011
