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Governments Lokpal Bill ? Or Jan Lokpal Bill ? Let’s Create A REALISTIC Lokpal Bill

3 September 2011 No Comment

RTI Activist Krishnaraj Rao’s assessments of Governments Lokpal Bill & Jan Lokpal Bill with a thought of creating a realistic Lokpal Bill, This article is based on the observations and recommendations that he has made today to the Rajya Sabha Standing Committee. Over the last two weeks, Krishnaraj has worked to understand each section of both Government’s Lokpal Bill and Jan Lokpal Bill: http://tinyurl.com/Jan-Lokpal-versus-Govt-Lokpal

Enclosed are his observations

I made a flowchart of differences in the processes by which a citizen’s complaint would translate into punishment of a guilty public servant: http://tinyurl.com/Flowchart-JanLokpal-GovtLokpal

And I studied the principles behind NCPRI’s stand on the issue.

So these are my findings in a gist. (Yes – I do of course realize that this is an emotionally charged issue, and that we are all in a mindset of They versus Us. And so, I am going to be asked by my activist colleagues why I am taking “their” side, as I have often been asked in the last few months. To all my activist colleagues, my brothers-in-arms, I have only one reply: There is no ‘They’. It is all ‘Us’. And if we press for a law based on this mindset of civil society pitted against its ruling classes, then we will end up tearing away what remains of our Constitutional freedoms, and throwing them into the flowing river of time. Our children and grandchildren will have to bear the consequences of our folly.)

Assessment about the Two Bills:

1.       GOVERNMENT LOKPAL BILL OUTLINES LIMITED OBJECTIVES, BUT IT SHOWS THE MEANS TO ACHIEVE THEM. Civil society groups and media have derided Govt Lokpal Bill as a “Joke-pal” on the ground that it aims for too little. My own observation is that Govt. Lokpal Bill holds great promise, and what it aims for is very important. Govt Lokpal offers a solid conceptual foundation on which one may construct a Lokpal Bill that is truly empowering.

These shortcomings of Govt Lokpal Bill need to be removed to make it effective:

a)      Opaque selection procedure for Chairperson and Members (Section 3): Govt. Lokpal makes the Search Committee optional, and places it at the discretion of the Selection Committee. That is a faulty approach, because it nullifies the impartiality of the Lokpal. Without a clear merit-based process by which a panel of candidates will be put before the Selection Committee, and without objective criteria for screening suitable candidates, selections will inevitably involve nepotism and favouritism. How can anyone expect political appointees to be impartial judges over the people who appointed them? To make the Lokpal impartial and effective, it is crucial to have the kind of rigourous screening and selection that Jan Lokpal Bill proposes in its Section 4.

b)      Lokpal jurisdiction is limited to Central Govt & Parliament. Leaving State Governments and Legislatures out of the Lokpal’s ambit is like turning a blind eye to 90 percent of corruption happening in India. It is possible and necessary to pass a uniform anti-corruption Act that genuinely empowers the common man to fight corruption wherever and in whatever form he sees it, and does not limit his reach to only a few civil servants and ministers. This law must inspire confidence in people, otherwise it will languish like the Prevention of Corruption Act.

c)      Currently, the only reference point is Prevention of Corruption Act 1988. There are many subtle forms of system abuse that are not pinpointed by PCA 1988. Citizens are agitated by:

  • habitual failure to exercise due diligence or vigilance
  • regularly condoning wrongdoers without giving reasons
  • unwillingness of regulatory authorities to regulate as per the law
  • unwillingness of quasi-judicial authorities to do their job with rigour
  • mismanagement and neglect of important public records
  • abuse of lengthy judicial procedures to obstruct and delay justice
  • victimizing whistleblowers
  • the use of rules and procedures to subvert the intent of the Law

While the framework of the Govt. Lokpal Bill is quite sound, it chooses to ignore many of these issues that are agitating citizens. It is necessary to recognize and address at least some of these issues, but realistically, without falling prey to populism and wishful thinking.

d)      The heavy punishments proposed for “false and vexatious” complaints will frighten away most genuine complainants. The proposed punishments (especially imprisonment of minimum two years, maximum five years) must be reduced to a reasonable period e.g. minimum imprisonment of one week, maximum of one month. Nobody wants to go to jail even for a day; so one month will have the necessary deterrent effect against false complaints. Fines also should be reduced to a maximum of Rs 5,000; otherwise, poor people will never dare to file a complaint before Lokpal.

e)      A rewards clause should be included to encourage whistleblowers. Many genuine citizens go to great lengths to get corrupt officials punished. This results in massive savings for the nation as a whole. Their efforts must not go unrewarded and unrecognized. Rewards – say minimum Rs 20,000 and maximum of two percent of the estimated savings to the exchequer in one year — along with a citation of honour and a place in a hall of fame — should be an made part of the Lok Pal Bill.

2.       JAN LOKPAL BILL IS A WISH-LIST. IT IS A BASKET OF LAWS, NOT ONE SINGLE LAW. Seen in the gentlest and most generous light, Jan Lokpal Bill is the heartfelt wish-list of Indian society for clean governance and accountable administration. It outlines a dozen things that need to be set right in order to get good governance. However, seen in a more realistic light, Jan Lokpal reflects the angry middle-class desire to hang every frustration around the neck of the public servants. More than system reforms, it seems focused on creating a culture of punishments and fear.

As a piece of legislation, the flaws of Jan Lokpal Bill are in its very foundations:

a)      It rejects the Constitutional doctrine of Separation of Powers. Jan Lokpal asks for executive powers (i.e. police-like functions of investigation, search-and-seizure etc.) as well as judicial powers (hold trials, award punishments). In fact, by not laying down clear procedures for functioning, and intending to fill up this lacuna through ad-hoc rule-making by Lokpal, this Bill even tries to take legislative powers. The Jan Lokpal does not even have to wait for a complaint to be presented to it; it assumes the suo-moto powers to give directions to other public authorities on their administrative decisions and rule-making functions. With such overwhelming authority, the Lokpal would become administrator-in-chief, investigator, prosecutor and judge over all public authorities. These observations are made especially with reference to the following Jan Lokpal Bill Sections:

  • Section 6 – A large mixed bag of powers of all kinds, including the power to train sleuths and equip them with ultra-modern gadgets, and the power to erase lines of jurisdiction and get contracts cancelled.
  • Section 7 – Investigation, powers under FEMA and Prevention of Money-Laundering Act, , recommend transfers or suspension of public servant, Civil Court-like powers.
  • Section 8 – Powers of intelligence agencies – power to tap phones, hack emails, text messages etc.
  • Section 9 – Search & seizure, powers of Criminal Court
  • Section 18 – Power to make regulations
  • Section 22 – Penalties binding on the appointing authority
  • Section 23(3) – Punishments such as massive fines on an alleged beneficiary of corrupt acts who has not himself been given the chance to defend himself
  • Section 27 – Power to confiscate and attach assets

b)      It seeks to take over disciplinary powers of government departments, creating disempowerment in the departments’ superiors. Jan Lokpal is supposed to be a disciplinary authority over all govt. employees. It seeks to override the chain of command – the existing structure of disciplinary authorities (competent authority) that are built into the entire function. It seeks to disable departmental enquiries throughout the system, and take on these functions itself. The only powers that Jan Lokpal would leave with the heads of departments is the duty to do mundane tasks, and the ignominious task of carrying out punishments pronounced by the Lokpal!  This is with specific reference to Section 22 and also 2(m)(i).

c)      Jan Lokpal seeks to have no Competent Authority above itself – no system of checks and balances. It seeks to exercise power from the smallest clerk to the top functionaries in legislature, executive and judiciary i.e. MPs, Prime Minister and High Court and Supreme Court judges (See Section 17 and Section 2(e)(i)) This legislation is not intended to take its place in the eco-system of checks and balances; it wishes to dominate and become the super-predator in this eco-system.

d)      Jan Lokpal Bill is built on the vision of Phantom’s Law of the Jungle. The underlying argument is that because many rich and powerful lobbies are getting away with corruption, it is necessary to create a massive authority endowed with overwhelming powers so that it cannot be defeated, and extremely long arms so that it cannot be escaped. Like the Phantom, Lokpal can go into any corner of the Indian system in pursuit of the bad guys, and drag them off kicking and screaming straight to prison, and then confiscate their ill-gotten wealth.

e)      Jan Lokpal Bill, even if enacted by Parliament, is liable to be struck down by the Supreme Court as being ultra-vires the Constitution. In its present form, it cannot survive for even a year in the Indian judicial system, because it simply does not belong there.

WHAT NEEDS TO BE DONE NOW

 A.      CREATE MULTIPLE LOKPAL-TYPE AUTHORITIES BY THREE SEPARATE LAWS. For the moment, let us call these (i) Khaas Lokpal (ii) Aam Lokpal and (iii) Whistleblower Lokpal.

(i)                 KHAAS LOKPAL should be almost exactly as per Govt. Lokpal Bill. With one significant difference; his jurisdiction should be over both Centre and States i.e. Prime Ministers and Chief Minister (after they demit office), ministers and past ministers, MPs and MLAs (but not with regards to voting and speeches in the House), Group A officers in Central & State Govt, heads of all PSUs, etc. Complaints should be entertained only under Prevention of Corruption Act and Indian Penal Code i.e. corruption and criminal actions. It is possible to legislate Lokpal Bill for central and state public servants both, like Right to Information Act. These are in the Concurrent list of powers to make laws: • Economic and Social Planning • Criminal Law and Procedure • Civil Procedure. Parliament can legislate this in the National Interest, in accordance of Article 249 of the Constitution.  It is critical to have uniformity of laws with regard to control of corruption, in order to send a clear message throughout the system.

(ii)               AAM LOKPAL should have jurisdiction over the centre and states in respect of govt officers & the rank and file of employees. He should entertain complaints made under the Prevention of Corruption Act, Indian Penal Code, Public Records Act and breach of provisions of specific GRs, govt. circulars, directives, guidelines and manual of procedure. Procedures are as prescribed in Govt Lokpal Bill. The effort here should be to take care of overt and covert forms of corruption, including dereliction of duty.

(iii)             WHISTLEBLOWERS’ LOKPAL should have both the above jurisdictions, but only where complaints, RTI applications etc has resulted in backlash or threat. The backlash may be in the form of murder, attempt to murder, assault, damage to property and business, professional persecution, counter-accusations, false FIRs, threats, and other criminal acts etc. Whistleblower’s Lokpal hearings must be mainly focused on the need to issue directions for providing protection and investigation victimization, including murder, of whistleblowers. For investigation and prosecution of corruption, the case must be transferred to either Khaas Lokpal or Aam Lokpal.

The Rajya Sabha Standing Committee has devoted a lot of effort towards Public Interest Disclosure Bill (informally called whistleblower’s protection bill). The entire content of a whistleblower’s bill cannot be condensed into one or two sections of Lokpal Bill. Whistleblowing is in itself a whole subject that requires many definitions, etc. A nuanced approach is needed because the whistleblower may not be necessarily a complainant; he may be an activist filing RTI applications, a journalist writing newspaper articles, a blogger putting information out on the internet, an insider leaking information to Wikileaks etc, or simply a person who is raising his voice within his own department. He may also be a malafide person with a personal axe to grind. Public Interest Disclosure Bill in the original form that it was proposed, was unsatisfactory on many counts; having CVC as the apex authority is not the solution, as the institution of CVC is burdened with its own legacy.

B.      LOKPAL MUST NOT ATTEMPT TO REPLACE DEPARTMENTAL VIGILANCE, DEPARTMENTAL ENQUIRY AND DISCIPLINARY ACTION. Lokpal must not be allowed to destroy a time-tested matrix for distribution of administrative and disciplinary power. Rampant corruption and indiscipline may result if the old mechanisms are scrapped.

So Lokpal must NOT be empowered to pronounce departmental penalties like demotion, suspension etc. The way for Lokpal to put the onus on various public authorities to carry out their own departmental enquiries and disciplinary action is as outlined in the Govt. Lokpal Bill.

C.      JUDGES OF HIGH COURT & SUPREME COURT MUST NOT BE UNDER LOKPAL BILL. A separate Judicial Accountability Bill is required for making judges accountable without undermining the prestige of the judiciary and the ability of judges to give orders without fear or favour. Making judges afraid that a litigant or defendant may file a Lokpal complaint is not in the interest of the country.

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