PROBITY IN PUBLIC LIFE
Readers will recall that Common Cause had filed a writ petition in the Supreme Court in 1995 seeking directions to the Union of India to declare the time-frame for introducing in the Parliament a legislation for the establishment of the institution of Lok Pal to check and control corruption in public offices. The Supreme Court was also urged to direct the organisations of the Comptroller & Auditor General of India (C&AG), the hiefigilanceCommissioner and the Central Bureau of Investigation to spell out the specific steps that they would takefor overcoming the eficiencies which impair their effectiveness to curb corruption at the political and bureaucratic levels. It was in this matter that the Supreme Court took cognizance of the abuse of discretionary quota by Capt. Satish Sharma, Union Minister of Petroleum, and cancelled the allotments of petrol pumps made by him to favour certain people who were close to him. The Supreme Court also imposed exemplary damages on Capt. Satish Sharma, but this part of the order was subsequently revoked in review. The petition has, however, been languishing for lack of political and administrative will to address the problem of corruption, which is eating into the vitals of the nation. The legislative inertia, which has impeded the enactment of the long-awaited Lok Pal Act, is but a manifestation of this lack of will. It is in this context that Common Cause has submitted an additional affidavit praying that the Apex Court may, in the interim, issue specific directions to ensure probity in the public life. The additional affidavit is reproduced below.
-Editor
IN THE SUPREME COURT OF INDIA
WRIT PETITION (CIVIL) NO. 26 OF 1995
In the matter of
COMMON CAUSE
(Registered Society) ………. .................................................................................................Petitioner
VERSUS
UNION OF INDIA & ORS . ……… ..........................................................................................Respondents.
ADDITIONAL AFFIDAVIT ON BEHALF OF THE PETITIONER
I, Kamal Kant Jaswal, Director, COMMON CAUSE, aged about 63 years, having office at Common Cause House, 5, Institutional Area, Nelson Mandela Road, Vasant Kunj, New Delhi, do hereby solemnly affirm and state as under:
1. That I am the Director of the Petitioner Society and well conversant with the facts of the case and, therefore, competent and authorized to swear this affidavit.
2. That the petitioner respectfully submits that notwithstanding the repeated commitments madeby the Union of India during the last four decades and the introduction of different versions of Lokpal Bill in the Parliament on as many eight occasions, no concrete step has yet been taken by the present Government, which has been in office for more than three years, to enact a central legislation to create the office of Lokpal at the national level with a view to ensuring probity in public life.
3. Likewise, there has been no attempt to revitalize the institution of Lokayukta/Lokpal in the states, where, with a few honorable exceptions, it has been languishing due to basic flaws in conception and for want of jurisdiction, resources and political will. The state laws on the subject of Lokayukta/Lokpal show an extreme diversity in respect of composition, scope, coverage, empowerment and autonomy and as a result, the performance of the institution has been extremely variable.
4. It has been stated in the affidavit filed on behalf of the Respondent no. 2 in August 2007 that pursuant to the commitment made in the National Common Minimum Programme of the Government to enact the law on Lokpal, the draft Lokpal Bill 2004 prepared by the Legislative Department of the Ministry of Law and Justice was considered by the Cabinet on 15.12.2004. It is further claimed that the draft has been revised incorporating the recommendations of a Group of Ministers and has been referred to the Department of Legal Affairs for concurrence before consideration by the Cabinet for a decision regarding introducing the Lokpal Bill 2007 in the Parliament. The petitioner would like to submit that the phraseology used in the affidavit betrays a deliberate attempt to avoid a firm commitment even in regard to the process of introduction of the Lokpal Bill, not to mention its outcome and impact.
5. Even if it is assumed that the Government will eventually decide to introduce the Lokpal Bill 2007 in the Parliament, it is unlikely that there will be sufficient time to evolve a consensus around it and ensure its passage through both houses of the Parliament before the dissolution of the Lok Sabha in the beginning of the year 2009, or earlier. It is even more unlikely that the Central Government will care to, and be able to, enact a Central Law to strengthen the institution of Lokayukta in the states where it already exists and establish it in the remaining states with a view to ensuring probity in public life at all levels.
6. In this context, the petitioner has, after studying the functioning of the institution of Lokpal/ Lokayukta in the states and holding a series of discussions with public spirited social activists committed to the cause of probity in public life, attempted to identify the pre-requisites of an institutional framework for ensuring probity at all levels of public life. The interactions held by the petitioner have also shown that the institution of Lokayukta has worked very well in Karnataka. It has considerably evolved in the last twenty years. Based on experience, amendments have been made in the Karnataka Lokayukta Act from time to time. It has, therefore, been suggested that the provisions of the Karnataka Lokayukta Act be liberally imported into the institution of Lokpal/ Lokayukta at the national level as well as in other states. This view has also been supported by the Conference of Lokayuktas.
7. It would be pertinent hereto submit that though the court cannot legislate but if the absence of the legislation is leading to the violation of fundamental rights and if the gaps in the legislation can be filled up by the executive directions, the court can and does order the executive to issue the necessary executive directions which have been found necessary to protect the fundamental rights of the citizens. This Hon’ble court has laid down law in Vishakha’s case [(1997) 6 SCC 241] in which it was held that if there is no enacted legislation to provide for the effective enforcement of any fundamental right, this Court can issue guidelines/directions for the effective enforcement of the said fundamental right under Article 32 of the Constitution which would be law under Article 141 of the Constitution till suitable legislation is enacted to occupy the filed. Following the Vishakha judgment, this Hon’ble Court once again in Vineet Narian case held that
“….There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of the Supreme Court as provided in Article 144 of the Constitution. This power has been recognized in a catena of decisions of the Supreme Court and it can be exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. It is the duty of the executive to fill the vacuum by executive orders because its field is coterminous with that of the legislature, and where there is inaction even by the executive, for whatever reason, the Judiciary must step in, in exercise of its constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the filed.
8. Accordingly, the petitioner prays that this Hon’ble Court may be pleased to issue the following directions to the Central Government, State Governments and Union Territories for compliance till framing of the appropriate legislations.
i). The respondent Union of India may be directed to constitute a multiple- member (preferably eleven members) Lok Pal consisting of a retired Judge of the Supreme
Court as its chairperson and other members chosen from among retired Supreme Court judges/ Chief Justices of High Courts, eminent jurists and experts in administrative law and practice known for their professional knowledge and integrity. A detailed model of the Lokpal as suggested by the Petitioner is annexed hereto.
ii). The following are pre-requisites for effective functioning of Lokpal. Experience shows that in those states where the following conditions did not exist, Lokayukta proved ineffective:
a. It is submitted that in many states, the Lokayukta has been assigned the task of dealing with political corruption, while the State Vigilance Commissions, functioning directly under the control of the Executive, have been assigned the responsibility of dealing with bureaucratic corruption. It is well known that the Vigilance Commissions have failed in checking corruption by bureaucrats. There is not a single instance of any Vigilance Commission in the country, including the Central Vigilance Commission, which has been effective in curbing corruption and which may inspire confidence. Similarly, wherever Lokayuktas have been entrusted with the limited task of dealing with political corruption, they have been ineffective because political corruption mostly entails active participation of bureaucrats. In fact, the involvement of politicians, in most cases, only comes to light at an
advanced stage of the enquiry against bureaucrats. Therefore, many of the Lokayuktas have nothing much to do and have been rendered completely ineffective. The Lokayukta in Delhi, for example, has practically been jobless since its existence. It has been observed that the distinction between political corruption and bureaucratic corruption is not only artificial and arbitrary, but also creates impediments in effectively dealing with corruption. The right approach, therefore, is effectively to deal with systemic corruption, rather than to segment it into political and bureaucratic corruption. When the institution of Lokayukta was set up in Karnataka, the State Vigilance Commission was abolished and complaints against bureaucrats as well as politicians were brought directly under the jurisdiction of the Lokayukta. This approach has worked very well. In fact, wherever such an approach has been tried, it has worked well within other constraints. Another notable example is that of the Lokayukta in Madhya Pradesh. It is, therefore, prayed that the Central Vigilance Commission (CVC) should be brought directly under the control of the Lokpal for all purposes, administratively and functionally. The CVC should report to the Lokpal, so that the Lokpal has an overall control over cases of corruption, whether they are against a bureaucrat or a politician. The entire machinery of the CVC should be placed at the disposal of the Lokpal. All the cases pending with the CVC may be deemed to have been transferred to the Lokpal.
b. The Lokpal may investigate any action, which is taken by or with the general or specific approval of a public functionary in any case where a complaint involving an allegation is made in respect of such action or mal-administration. The Lokpal may also initiate an investigation suo motu.
c. Power to issue interim order to stay implementation of activity leading to corruption: If during the course of investigation, the Lokpal is prima facie satisfied that the allegation in respect of any action is likely to be sustained either wholly or partly, he may direct to the public functionary concerned to stay the implementation or enforcement of the decision or action complained against, or to take such mandatory or preventive action, on such terms and conditions, as he may specify in his directions. The Lokpal may at any stage of inquiry or investigation forward an interim report to the Government recommending to take such action as may be considered necessary by him against the public functionary, including his suspension, pending inquiry or investigation to safeguard wastage or damage of public property or public revenue by the administrative acts of the public functionary, to prevent further acts of misconduct by the public functionary, to prevent the public functionary from secreting the assets allegedly acquired by him by corrupt means.
d. No prior sanction should be needed by the Lokpal to initiate investigations against any public functionary. If so required under any law, the sanction should be deemed to have been accorded.
e. The Lokpal should have the powers to deal with both disciplinary and criminal aspects of every complaint. Investigation of Lokpal will be like police investigation under Cr. P.C. and followed by straightway charge-sheet. No action should be taken/ proposed against any public functionary by the Lokpal unless an opportunity of being heard has been given to the public functionary concerned. The enquiries conducted by the Lokpal should be treated as final by the Government for disciplinary purposes. The Government should be duty bound to take the action recommended against the concerned official on the basis of the Lokpal’s report within three months of its receipt. The relevant disciplinary rules should be deemed to have suitably been amended to conform to this requirement.
f. The Lokpal should have the power to search any premises and seize any documents or valuables whenever required in appropriate circumstances in order to carry out his functions. The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, so far as may be, to searches and seizures conducted by the Lokpal.
g. The Lokpal should have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 , in respect of summoning and enforcing the attendance of any person, requiring the discovery and production of any document, receiving evidence on affidavits, requisitioning any public record or copy thereof from any court or office, issuing commissions for the examination of witnesses or documents etc.
h. Any proceeding before the Lokpal should be deemed to be a judicial proceeding. The Lokpal should have and exercise the same jurisdiction, powers and authority in respect of contempt of itself as a High Court in cases of civil contempt to get its orders and directions implemented. i. The reports and recommendations of the Lokpal should be binding on the government subject to the jurisdiction of the High Courts and the Supreme Court. If, after investigation of any action involving an allegation, the Lokpal is satisfied that such allegation is substantiated either wholly or partly, he would by report in
writing communicate his findings and recommendations to the government. The government should be duty bound to implement the recommendations made in the report in the manner specified
j. A public functionary must vacate the public office held by him, if so directed by the Lokpal. Where, after investigation into a complaint, the Lokpal is satisfied that the complaint involving an allegation against a public functionary is substantiated and that the public functionary concerned should not continue to hold the post held by him, the Lokpal may make a declaration to that effect in his report.
k. If after investigation into any complaint, the Lokpal is satisfied that a public functionary has committed any criminal offence and should be prosecuted in a court of law for such offence, he may pass an order to that effect and initiate prosecution of the public functionary concerned and if prior sanction of any authority is required for such prosecution, then, notwithstanding anything contained in any law, such sanction shall be deemed to have been granted by the appropriate authority on the date of such order.
l. Independent staff and investigative machinery: The Lokpal shall be provided by the Government such staff and professionals as may be required by the Lokpal to function independently. However, whenever needed, the Lokpal may for the purpose of conducting investigations utilize the services of any officer or investigating agency of the State Government or the Central Government including any other person or any other agency, functional and administrative. The Central Bureau of Investigation (CBI) should be placed under the direct control of the Lokpal for all purposes.
m. Transparency within Lokpal: In order to make its functioning transparent and accountable, the Lokpal shall inform the complainant before closing any case or before finalizing any investigation. If the Lokpal decides to close a case either ab initio or at a later stage, it shall intimate the reasons for doing so to the complainant and the complainant shall be allowed inspection of all investigations, if any, carried out till then and shall be allowed to adduce such additional evidence or counter the findings of investigations. Such additional averments or evidence produced by the complainant shall also be taken into account by the Lokpal. If the Lokpal decides to dismiss the arguments or evidence of the complainant, he shall do so by recording reasons in writing. In cases of prosecution, the complainant shall be treated as an important prosecution witness
n. All cases shall be heard by the Lokpal in public, unless extraordinary circumstances warrant in camera proceedings. The record of completed investigations pertaining to any case shall be open for public inspection, unless the Lokpal records in writing the reasons why investigations in a particular case should not be disclosed in view of the extraordinary circumstances of that case. o. Every complaint shall be disposed of within six months and in any case not beyond nine months after its receipt.
p. In order to prevent corruption from creeping into the institution of Lokpal itself, the following measures should be adopted:
· The Lokpal shall have complete say in selecting officers to work in the Lokpal, the CVC and the CBI.
· In order to win the confidence of the public, any complaint received by the Lokpal against any of its own officials shall be dealt with speed and transparency. It shall be investigated by another officer of the Lokpal or by an independent officer, if the complainant so wishes. The investigation shall be completed within a month of the complaint and the Lokpal would take the strictest action prescribed under law against that officer within the next one month. All the proceedings will be held publicly and all files related to the case, including investigations carried out, shall be open for public scrutiny after the investigations are complete.
9. Directives for Lokayukta: The above provisions would apply to the institution of Lokayukta at state level also. This Hon’ble Court may like to issues similar directions for setting up the institution of Lokayukta in all such states on the above lines, where it does not exist and for appropriate amendments to the institution of Lokayukta, wherein any or more of the above provisions do not exist or are in contravention of the above provisions.
10. It is submitted that while transferring the CVC to the Lokpal as suggested above, some steps need to be taken to make the CVC machinery effective. The details of the steps are given in the annexure.
DEPONENT
Annexure-I
Suggested model for creating the institution of Lokpal at the Centre and Lokayukta in States:
i). The respondent Union of India may be directed to constitute an eleven member Lok Pal consisting of a retired judge of the Supreme Court as its chaiperson and ten members chosen from among serving or retired Supreme Court judges/ Chief Justices of High Courts, eminent jurists and experts in administrative law and practice known for their professional knowledge and integrity.
ii). The appointment of the chairperson and members of the Lok Pal may be made on the recommendations of a Selection Committee chaired by the Vice President of India and comprising the Prime Minister, the Chief Justice of India, the Speaker of the Lok Sabha, the Leaders of Opposition in the Rajya Sabha and the Lok Sabha and the Attorney General of India.
iii). The Selection Committee may be assisted by a Search Committee of eminent public figures, which shall act in a transparent manner designed to inspire public confidence. A panel of names, twice as many as the vacancies, shall be prepared by the Search Committee. The Search Committee shall consist of five members drawn from amongst the sitting Chairman of the National Human Rights Commission, Chief Election Commissioner, Comptroller and Auditor General and the Chairman of SC & ST Commission.
iv) Each member of the search committee shall suggest three names, along with detailed description of his nominees. Members of the search committee shall be called upon to put their comments on each of the nominees. The committee shall not discard any name at its end. Its task will be to collect as much information as possible on each of the nominees. The list of all the nominees, their background, along with the information collected on each of the names and comments of members of search committee (without disclosing the name of the member making comments) for each member shall be put up on a website and public opinion should be invited for every name.
v) The Selection Committee shall select the members of the Lokpal and will send the names to the President of India for their appointments.
vi) A person appointed as the Chairperson or a member of Lokpal may hold office for a term of five years from the date on which he enters upon his office, or up to the age of 70, whichever is earlier.
vii) A person appointed as the Chairperson or a member of Lokpal shall not be eligible, after retirement, or after demitting office for any other reason, for any assignment whatsoever under the Central or a State Government.
viii) The salary of the Chairperson of Lokpal may be at par with that of the Chief Justice of India and that of the members equal to a judge of the Supreme Court.
ix) If there is any complaint against the Chairperson or any of the members of the Lokpal, the said complain will be examined by the collegium of five senior judges of the Supreme Court. If, on examination, prima facie case is made out, a trial will be conducted by three Judges of the Supreme Court and on finding the complaint correct, will recommend the removal of the said member. No complaint should be dismissed at threshold without hearing the complainant.
x) It is submitted that in many states, the Lokayukta has been assigned the task of dealing with political corruption, while the State Vigilance Commissions, functioning directly under the control of the Executive, have been assigned the responsibility of dealing with bureaucratic corruption. It is well known that the Vigilance Commissions have failed in checking corruption by bureaucrats. In fact, the involvement of politicians, in most cases, only comes to light at an advanced stage of the enquiry against bureaucrats. Therefore, many of the Lokayuktas have nothing much to do and have been rendered completely ineffective. It has been observed that the distinction between political corruption and bureaucratic corruption is not only artificial and arbitrary, but also creates impediments in effectively dealing with corruption. The right approach, therefore, is effectively to deal with systemic corruption, rather than to segment it into political and bureaucratic corruption. It is, therefore, prayed that the Central Vigilance Commission (CVC) should be brought directly under the control of the Lokpal for all purposes, administratively and functionally. The CVC should report to the Lokpal, so that the Lokpal has an overall control over cases of corruption, whether they are against a bureaucrat or a politician. The entire machinery of the CVC should be placed at the disposal of the Lokpal. All the cases pending with the CVC may be deemed to have been transferred to the Lokpal.
xi). The Lokpal may investigate any action, which is taken by or with the general or specific approval of a public functionary in any case where a complaint involving an allegation is made in respect of such action or mal-administration. The Lokpal may also initiate an investigation suo motu. xii) In this context, “Public Functionary” denotes a person falling under any of the following descriptions:
(a) the Prime Minister;
(b) a Minister; including a member of the Cabinet, Deputy Prime Minister, a Minister, a Minister of State, a Deputy Minister, and a Parliamentary Secretary.
(c) a member of Parliament;
(d) Every officer appointed to a civil or public service or a post in connection with the affairs of India
(e) Every person in the service or pay of -
- Any corporation established by or under a Central Act and owned or controlled by the Central Government.
- Any government company within the meaning of Section 617 of the Companies Act, 1956, in which not less than fifty one percent of the paid up capital is held by the Central Government, or any company which is subsidiary of a company in which not less than fifty one percent of the paid up share capital is held by the Central Government.
- Any society registered under the Societies Registration Act 1860 which is subject to the
control of the Central Government.
“Action” means any action taken by a public functionary in the discharge of his functions as such public functionary and includes decision, recommendation or finding or in any other manner and includes willful failure or omission to act and all other expressions relating to such action shall be construed accordingly.
“Allegation” in relation to a public functionary includes any affirmation that such public functionary-
(a) has abused his position as such public functionary to obtain any gain or favor to himself or to any other person or to cause undue harm or hardship to any other person;
(b) was actuated in the discharge of his functions as such public functionary by personal interest or improper or corrupt motives;
(c) is guilty of corruption, favoritism, nepotism or lack of integrity in his capacity as such public functionary; OR
(d) has failed to act in accordance with the norms of integrity and conduct which ought to be followed by public functionary of the class to which he belongs. “Mal-administration” means action taken or purporting to have been taken in the exercise of administrative function in any case where,-
(a) such action or the administrative procedure or practice governing such action is unreasonable, unjust, oppressive or improperly discriminatory; or
(b) there has been willful negligence or undue delay in taking such action or the administrative procedure or practice governing such action involves undue delay.
xi) The following provisions relating to complaints and investigations may also be incorporated in the directives:
a) Any person may make a complaint to the Lokpal. If, during the course of investigation, the Lokpal is prima facie satisfied that the allegation in respect of any action is likely to be sustained either wholly or partly, he may direct to the public functionary concerned to stay the implementation or enforcement of the decision or action complained against, or to take such mandatory or preventive action, on such terms and conditions, as he may specify in his directions. The Lokpal may at any stage of inquiry or investigation forward an interim report to the Government recommending to take such action as may be considered necessary by him against the public functionary, including his suspension, pending inquiry or investigation to safeguard wastage or damage of public property or public revenue by the administrative acts of the public functionary, to prevent further acts of misconduct by the public functionary, to prevent the public functionary from secreting the assets allegedly acquired by him by corrupt means.
b) No prior sanction shall be needed by the Lokpal to initiate investigations against any public functionary. If so required under any law, the sanction shall be deemed to have been accorded.
c) The Lokpal shall have the powers to deal with both disciplinary and criminal aspects of every complaint. No action shall be taken/ proposed against any public functionary by the Lokpal unless an opportunity of being heard has been given to the public functionary concerned. The enquiries conducted by the Lokpal shall be treated as final by the Government for disciplinary purposes. The Government shall be duty bound to take the action recommended against the concerned official on the basis of the Lokpal’s report within three months of its receipt. The relevant disciplinary rules shall be deemed to have suitably been amended to conform to this requirement.
d) The Lokpal shall have the power to search any premises and seize any documents or valuables whenever required in appropriate circumstances in order to carry out his functions. The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, so far as may be, to searches and seizures conducted by the Lokpal.
xii). The Lokpal shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 , in respect of the following matters, namely:-
(a) Summoning and enforcing the attendance of any person and examining him on oath ;
(b) Requiring the discovery and production of any document;
(c) Receiving evidence on affidavits;
(d) Requisitioning any public record or copy thereof from any court or office ;
(e) Issuing commissions for the examination of witnesses or documents ;
(f) Ordering payment of compensatory cost in respect of a false or vexatious claim or defence;
(g) ordering cost for causing delay;
xiii). Any proceeding before the Lokpal may be deemed to be a judicial proceeding. The Lokpal may have and exercise the same jurisdiction, powers and authority in respect of contempt of itself as a High Court in cases of civil contempt to get its orders and directions implemented. xiv). The reports and recommendations of the Lokpal shall be binding. If, after investigation of any action involving an allegation, the Lokpal is satisfied that such allegation is substantiated either wholly or partly, he shall by report in writing communicate his findings and recommendations to the government. The government shall be duty bound to implement the recommendations made in the report in the manner specified
xv). The Lokpal may present annually a consolidated report on the performance of his functions to the President. The President may cause a copy thereof together with an explanatory memorandum to be laid before each House of the Parliament.
xvi) In order to make the institution of Lokpal truly effective, a public functionary must vacate the public office held by him, if so directed by the Lokpal. Where, after investigation into a complaint, the Lokpal is satisfied that the complaint involving an allegation against a public functionary is substantiated and that the public functionary concerned should not continue to hold the post held by him, the Lokpal may make a declaration to that effect in his report.
xvii) If after investigation into any complaint, the Lokpal is satisfied that a public functionary has committed any criminal offence and should be prosecuted in a court of law for such offence, he may pass an order to that effect and initiate prosecution of the public functionary concerned and if prior sanction of any authority is required for such prosecution, then, notwithstanding anything contained in any law, such sanction shall be deemed to have been granted by the appropriate authority on the date of such order.
xviii). The Lokpal may for the purpose of conducting investigations utilize the services of any officer or investigating agency of the State Government or the Central Government including any other person or any other agency, functional and administrative. The Central Bureau of Investigation (CBI) may be placed under the direct control of the Lokpal for all purposes.
xix) The Lokpal may be provided by the Government such other staff and professionals as may be required.
xx) In order to make its functioning transparent and accountable, the Lokpal shall inform the complainant before closing any case or before finalizing any investigation. If the Lokpal decides to close a case either ab initio or at a later stage, it shall intimate the reasons for doing so to the complainant and the complainant shall be allowed inspection of all investigations, if any, carried out till then and shall be allowed to adduce such additional evidence or counter the findings of investigations. Such additional averments or evidence produced by the complainant shall also be taken into account by the Lokpal. If the Lokpal decides to dismiss the arguments or evidence of the complainant, he shall do so by recording reasons in writing. In cases of prosecution, the complainant shall be treated as an important prosecution witness
xxi) All cases shall be heard by the Lokpal in public, unless extraordinary circumstances warrant in camera proceedings. The record of completed investigations pertaining to any case shall be open for public inspection, unless the Lokpal records in writing the reasons why investigations in a particular case should not be disclosed in view of the extraordinary circumstances of that case.
xxii) Every complaint shall be disposed of within six months and in any case not beyond nine months after its receipt.
xxiii) The annual report of the Lokpal shall contain, inter alia, the list of all complaints received by the Lokpal, names of officials against whom complaints were made, dates of receipt of complaints, reasons for dismissal of complaints ab initio or at a later stage, and the present status of pending complaints. Likewise, a report shall be prepared for all cases taken up by the Lokpal suo motu. The report shall be made public after it has been submitted to the President.
xxiv) In order to prevent corruption from creeping into the institution of Lokpal itself, the following measures should be adopted:
• The Lokpal shall have complete say in selecting officers to work in the Lokpal, the CVC and the CBI.
• In order to win the confidence of the public, any complaint received by the Lokpal against any of its own officials shall be dealt with speed and transparency. It shall be investigated by another officer of the Lokpal or by an independent officer, if the complainant so wishes. The investigation shall be completed within a month of the complaint and the Lokpal would take the strictest action prescribed under law against that officer within the next one month. All the proceedings will be held publicly and all files related to the case, including investigations carried out, shall be open for public scrutiny after the investigations are complete.
ANNEXURE-II
SUGGESTIONS FOR IMPROVING THE FUNCTIONING OF THE CVC
The CVC does not have its own investigative machinery; the few officials available with the CVC are used in rare cases. It functions through the network of Chief Vigilance Officers (CVO). Every Government Department or company has an internal Vigilance wing, which is headed by a Chief Vigilance Officer. Most of the complaints received by the CVC are merely forwarded to the respective CVO for necessary action. After that, the CVC has little control over the complaint, except sending reminders to expedite enquiries. In many cases, it has been seen that the CVOs do not pay heed to such reminders from the CVC. Therefore, the CVC is reduced to the status of a post office for corruption complaints against bureaucrats.
The constitution of the internal vigilance wing in each department is such that it is practically difficult for it to function effectively. The vigilance wing is an integral part and under the control of the Department, whose wrongdoings they are expected to investigate. It is manned by the officers and staff drawn from the same department. Sometimes the CVO is an outsider, but the rest of the personnel, who do the actual investigations, are from the same department. They receive complaints of corruption against their superiors, peers and juniors in that Department. It is natural that a vigilance officer should be subjected to all kinds of pulls and pressures while handling any complaint. It would be extremely difficult for a vigilance officer to deal with a complaint against a senior officer, because there is a strong possibility that he might get posted under that senior officer some time in future. One also comes across instances when vigilance officers treat this as an opportunity to oblige senior officers in the expectation of future favours. They even resort to destroying evidence to please their seniors. Even if a vigilance officer is honest, it is extremely difficult for him to proceed against his
senior, who might become his future boss. In some Departments, like the Food & Civil Supplies Department in Delhi, vigilance is not even a separate function. A field officer, while performing his regular duties, is assigned the additional duties of a vigilance officer. How could he be expected to handle complaints of corruption against himself or his immediate boss? Such a system exists in many departments of state governments and Central Government, including the Indian Railways. Many instances have come to light when an officer was asked to conduct an enquiry against himself. The vigilance wing reports to some senior officer in the same Department. In some cases, the vigilance wing has also been used by senior officers to settle scores. Therefore, the entire system of internal vigilance wing is quite ineffective in dealing with corruption. As soon as a complaint is received, the machinery gets into motion to cover it up and protect fellow officer rather than do an honest investigation.
The CVC totally depends upon this machinery. It is, therefore, suggested that the officials serving in the vigilance wings of all departments from the level of the CVO to the level of Group III officials be taken out of their department and placed directly at the disposal of the CVC for a period of five years. They may be treated as on deputation to the CVC for this period. The CVC may rotate these officers to ensure that they are not posted to their own departments. Further induction in the vigilance wings at these levels may be done directly by the Lokpal The vigilance officers may be directly responsible to the CVC, functionally and administratively, and not be required to report to the Head of the Department, for which they are performing vigilance functions. This would ensure complete independence of the investigative machinery of the CVC. If the CVC needs technical inputs in any particular department, it could use the services of an officer from that department in an advisory capacity.
With the above changes, the CVC should be in a position to provide effective support to the Lokpal. The institution of the Lokpal thus can be made more credible and inspire public confidence.
Late one night, a mugger wearing a ski mask jumped into the path of a well-dressed man and stuck a gun in his ribs. ‘Give me your money’, he demanded.
Indignant, the affluent man replied, ‘you can’t do this-I’m a politician!’
‘In that case,’ replied the robber, ‘give me my money!’
• • • • • •
Two ladies were discussing what they should wear to the country club dance.
‘We’re supposed to wear something to match our husband’s hair. So I’m going to wear black,’ said Mrs. Johnson.
‘Goodness’, gasped her companion. ‘I don’t think I’ll go.’ Her husband was bald.
• • • • •
