Saturday, April 9, 2011

Lokpal to Jan Lokpal

              I have taken extempore decision to write this article in order to support the cause of Anna Hazare’s hunger strike. It is not unknown fact that Corruption in India is growing day by day like a princess of fairy tell, everyday new scams are coming out. The number of scams and sum of money involved in it has grown so large that if we can recover the amount lost in scams of past 10 years and use it for national development than India can become a developed country in next 10 year, but unfortunately this responsibility lies on the shoulders of those people who themselves are responsible for such rampant corruption. Naturally politicians neither from ruling parties nor from opposition are willing to take concrete action to curb corruption because if they do so than their own skeleton of corruption might come out. Because of this they have adopted their old policy of killing the time by appointing commissions and committees and by offering show peace resignations. Latest in the series of political drama is government’s urgency to enact Lokpal Bill to end corruption. Naturally laymen’s mind is filled up with lot of questions like what is Lokpal bill? What is its history? Why government is showing so urgency to enact this bill and why Anna Hazare is opposing it? 


               Although I have given some glimpses of the features of Lokpal bill in my first article “Corruption: The cancer of India” but today let’s discuss the history, revolutionary features and the roots of recent controversy over Lokpal bill in detail. In 1966 the 1st Administrative reform commission was set up to conduct inquiry in the working of India’s administrative system and suggests some measures by which efficiency, transparency and effectiveness of Indian Administration can be increased. The commission submitted 20 reports in which 581 recommendations were incorporated out of which the most important and revolutionary recommendation was to setting up of Lokpal and Lokayukta institutions to permanently end the corruption. The idea was conceived from the inspiration of Ombudsman system in Scandinavian countries and Parliamentary commissioner in New Zealand. In these countries cases of corruption by ministers and higher officials is investigated by an independent authority called Ombudsman.


Principles suggested by 1st ARC in the establishment of Lokpal - 


1) It should be an independent and impartial body. 


2) Appointment of Lokpal should be as far as possible, non political.

3) Lokpal should investigate cases of not only corruption but also injustice and favoritism.

4) Investigation and proceedings of Lokpal should be conducted in private and should be of informal character.

5) Lokpal should get whatever information including official documents relevant to investigation.

6) Status of Lokpal should be equivalent to that of highest judicial authority in the country.

7) Proceedings of Lokpal should not be subject to judicial interference.
          These principles were revolutionary in nature which if implemented properly could struck a major blow to the regime of corruption, if not end the corruption permanently. Because of this no government was interested in setting up of Lokpal and hence till now nine attempts have been made to enact a statute for setting up of Lokpal, however no bill could ever became a law. Last time this bill was introduced in 2006 which lapsed with the dissolution of 14th Loksabha. The salient features of this bill were as mentioned below.


Structure- Lokpal is to be a three member body with a chairperson who is or has been a chief justice or judge of the Supreme Court; and it’s two other members who are or have been judges or chief justices of high courts around the country. 
Appointment-The chairperson and members shall be appointed on the recommendation of a committee consisting of. (a) The Vice-President (Chairman) (b) The PM (c) The Speaker of LS (d) Home Minister (e) Leader of the House, other than the house in which PM is a member. (f) Leaders of Opposition of both the houses. 


Independence-  The Lokpal is ineligible to hold any office of profit under Government of India or of any state, or similar such posts after retirement. Fixed tenure of three years and can be removed only on the ground of proven misbehavior or incapacity after an inquiry made by CJI and two senior most judges of SC. Lokpal will have its own administrative machinery for conducting investigations. He shall present annual reports of investigation to the President and the latter has to put it before the both houses of parliament accompanying the action taken report.


Powers- Lokpal can investigate the cases of corruption in administration of the country, either on somebody’s complaint or on a sou-motto (on his own discretion) basis. The Lokpal will inquire into complaints alleging that a public functionary has committed an offence punishable under the prevention of corruption act, 1988. The expression ‘public functionary’ covers all the three categories of union ministers including the Prime minister and the members of parliament. Judges of Supreme Court and high courts were kept out of the purview of Lokpal. It has been vested with the powers of a civil court in respect of summoning and enforcing the attendance of any person and examining him on oath. The bill provides for an open court or if the Lokpal wishes in camera proceedings. The proceedings have to be completed within six months, with a provision of extension of six more months. 


              Above mentioned bill also meet same fate which its predecessor meet. Like a masala Hindi movie story takes a twist from here, after so many years government suddenly wakes up and announces to introduce Lokpal bill in the next session of Loksabha and to speed up the process, also forms a Group of minister to prepare the draft of Lokpal bill. However this draft of Lokpal bill is not similar to the bill presented last time in the parliament. This new law is like a paper tiger, its sting have been removed by breaking its teeth and claws. Let’s glance through the draft prepared by Group of ministers.


1) Lokpal can take action against politicians only, bureaucrats are kept out of the purview of Lokpal.

2) Lokpal will not have sou-motto power to initiate investigation against erring politicians. He can act only after the case is referred by speaker of Loksabha and chairman of Rajya sabha.

3) Lokpal’s role is only of advisory nature according to the draft bill that means like CVC he can only give recommendations and can’t initiate criminal charges by launching FIR.

4) No provision for the recovery of money from the responsible people.

5) It is mandatory for Lokpal to finish the investigation within a period of a year, but no such time limit is fixed for judicial probe to conclude.

6) Selection committee to appoint Lokpal will comprise Vice President, PM, Leaders of house other than which in PM seats, Leader of opposition in both the houses, home minister and law minister.

7) Complainants making frivolous complaints can be sentenced. 

8) Lokpal will not include public grievances mechanism.


        Naturally this is nothing but an impotent anti corruption law of which there is no dearth in India’s legal system. Anna Hazare and other eminent personalities like Dr. Kiran Bedi, Justice Santosh Hegde the Lokayukta of Karnataka, Swami Agnivesh the Arya samajist social reformer, J.M. Lingdoh the former CEC , Arvind Kejariwal, Prashant Bhushan senior advocate of SC and many others are fighting against such vasectomy of Lokpal institution. They have prepared the draft of strong Jan Lokpal bill and have demanded the formation of committee to prepare the draft of new Lokpal bill which is to be presented in next Loksabha session. Let’s glance through the draft of Jan Lokpal bill.


1) Lokpal can take action against politicians, bureaucrats and judges of higher judiciary.

2) Lokpal will have suo-motto power to initiate investigation against erring persons and can also act on complaints received from citizens. 

3) Lokpal can launch FIR and can prosecute criminal charges against corrupt person.

4) Lokpal can order recovery of money lost because of corruption from responsible people.

5) Lokpal can award punishment of minimum 5 years and maximum life imprisonment to people who will be found guilty.

6) Financial penalty for frivolous complaints.

7) Time limit will be of two year, one year for the investigation and one for the judicial probe.

8) CEC, C&AG and other eminent personalities should also be included in the selection committee.


           Now you can see the difference between real and pseudo anti corruption law. Although I disagree with some of the points of the draft prepared by India Against Corruption like giving prosecution powers to Lokpal. Since this may result in diversification of judicial powers from SC and HC’s and it may lead to clashes between SC and Lokpal in long term. It might also create huge backlog of corruption cases pending in front of Lokpal since there is no scarcity of corruption cases in India and it is doubtful that body of 10 person can clear all the cases within a prescribed span of time, provision of life imprisonment is also doubtful. It is my personal view that provision of setting up of fast track anti corruption courts should be included in Lokpal bill and prosecution powers should be transferred to these courts and like TADA there should be a provision that appeal against orders of these courts can be done in SC only.
 

         In spite of some differences I support the Anna Hazare’s movement because it is not about Lokpal it is about appeal to people’s conscience against corruption. For the first time after JP movement people have come up together irrespective their cast, class, region, religion etc. and the most important thing is that this movement is about constructive reform of system rather than destructive revolution against system. Hence I am with this movement are you?

6 comments:

  1. This comment came to me via email by Dr.S.K. Modak hence I am publishing it here.

    Dear Bhavin,
    I have gone through your spirited article. It deserves to be read by everyone. Your review of the genesis of the bill and the delay tactics adopted by politicians to by following a policy of drift is revealing indeed. Keep writing and keep up the spirit.
    S.K.Modak

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  2. A good article again. The intention of Anna and alike behind pushing the government for Jan-Lokpall is definitely beyond any doubt. But our experience, so far, about such independent entities is not good. Bodies like CBI,EC or CVC have not performed their duties even at satisfactory level. Let us hope the Lokpal will not remain just another independent body.

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  3. Navin on this issue my opinion differs from your opinion. My experience of administration says that independent entities like election commission, C&AG and even judiciary has worked in a satisfactory manner if not very excellently. While criticizing the work of independent regulatory authorities we should also consider the problems faced by them during the discharge of their duty. Only after weighing both the sides i.e. hurdle in the jobs of these authorities and duties performed by these entities in spite of so many barriers, you will be able to understand the importance of these agencies.
    Regarding your criticism about the bodies like CBI, CVC and EC not performing their duties even at satisfactory level let me tell you that CBI is not an independent entity; it is a directorate department of GOI. Appointment, transfer and deputation of the officers in CBI is done by GOI, hence CBI has always been and will always be misused by ruling party for their own personal gains. EC’s contribution in the maintenance of democracy in India must be applauded. Not only during the time of sheshan even after that it was EC because of which free and fair elections are conducted in India. Take an example of 2004 Bihar state legislative assembly election. Lalu Yadav ruled Bihar for 15 years not because of development or good work but because of use of money power and muscle power. However in 2004 EC decided to conduct free and fair elections “come what may”. The whole Bihar police which was in the pocket of Lalu was compelled to sit at home and paramilitary forces were deployed to avoid any fear or favor and all the notorious elements were either thrown out of Bihar or were put behind the bars. After elections Lalu credited EC for his defeat in these words” I was not defeated by people of Bihar; it was EC who made sure that I should not come to power again. CVC having only recommendatory powers in the hand it can’t take action against erring politicians and bureaucrats, because it’s very genes are weak and even lokpal would have meet the same fate if Anna and civil society wouldn’t have jumped in the battle. No independent entity can work in satisfactory manner unless it is given sufficient powers. Of course power corrupts and absolute power corrupts absolutely and hence I am not in the support of giving absolute power to Lokpal too. As I have mentioned in the article Lokpal shouldn’t be provided with judicial powers, because it is against the basic principles of our constitution and even government won’t accept this provision because it can’t go against guidelines given in directive principle of state policy and if it does than Lokpal bill itself will be declared Ultra Virus (unconstitutional) by SC.

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  4. i have also been inspired by this movement(sameer class"11" from rsvm school dhanbad) 

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  5. Very good. its good to see that young students are taking interest in it. keep visiting.

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