PRASHANT BHUSHAN IN THE HINDU
The drama in the Rajya Sabha showed that the UPA government was not willing to go even by the will of Parliament. This gives rise to fundamental questions about the functioning of Indian democracy.
The year 2011 will be remembered in India as the year of the campaign against corruption and for the Jan Lokpal Bill. The campaign began in January 2011 in the backdrop of the publicity that accompanied the several mega-scams that surfaced in 2010, notably those relating to the Commonwealth Games and the telecom spectrum allocations. It caught the public imagination with Anna Hazare‘s fast at Jantar Mantar in New Delhi in April 2011. That forced the UPA government to constitute a joint drafting committee for a Lokpal bill. The civil society representatives in the committee proposed a bill called the Jan Lokpal bill, which became the basis for discussions. The basic principles on which the bill was drafted were culled from the United Nations Convention against Corruption, which required all countries to put in place anti-corruption investigative agencies that would be independent of the executive government and would have the jurisdiction to investigate all public servants for corruption.
The Jan Lokpal Bill thus provided for the selection of a 11-member Lokpal by a broad-based selection committee (comprising the Prime Minister, the Leader of the Opposition, two judges selected by all the judges of the Supreme Court, the Comptroller and Auditor General, the Chief Election Commissioner, the Central Vigilance Commissioner and the previous three chairpersons of the Lokpal), through a transparent process.
It sought to bring the anti-corruption wing of the Central Bureau of Investigation (CBI) under the Lokpal’s administrative control. The Lokpal was to be given corruption investigative jurisdiction over all public servants (including Members of Parliament, judges and all sections of the bureaucracy), and those who may have abetted their acts of corruption (including corporations or non-governmental organisations). The Lokpal could recommend the removal of those officials who were charge sheeted for corruption and order the freezing of any assets that seemed to be acquired by corrupt means.
The Bill sought to provide that corruption trials would be put on the fast track and the courts would determine the loss caused to the public exchequer by an act of corruption — which would be recovered from the corrupt public servants and their abettors. It provided for citizens’ charters to be framed by all public authorities, which would provide for time-bound delivery of public services; failure to do so would be actionable at the hands of officers working under the Lokpal. The bill required States to have Lokayuktas (covering State government officials) on the same lines as the Lokpal.
In order to ensure the integrity of the Lokpal institution, several layers of accountability were sought to be built into its working. Its functioning was made totally transparent by means of a requirement to put every detail of its investigations on a public website after the completion of investigations. The CAG was required to do an annual financial and performance audit of the functioning of the entire Lokpal institution. Any citizen could make a complaint against any member of the Lokpal to the Supreme Court, which had the power to order his or her suspension and even removal.
In addition, there were other important, anti-corruption provisions in the Jan Lokpal Bill. It required every public authority to give out contracts, leases and licences with total transparency and by public auction, unless such procedures were stated to be impossible to undertake. Public servants were barred from taking up jobs with those organisations or companies with which they had been dealing in their official capacity. This was meant to prevent an insidious form of corruption whereby public officials would take jobs instead of bribes from the organisations that they had been patronising in their official capacity.
After nine meetings, the government terminated its engagement with the civil society members of the joint drafting committee and went on to draft and table its own Bill in the monsoon session of Parliament. This Bill incorporated some of the provisions of the Jan Lokpal Bill but fell far short of what was required to even set up an independent and comprehensive anti-corruption investigative organisation. It left the selection of the Lokpal to a government-dominated committee. Though powers for the removal of Lokpal members were vested in the Supreme Court, complaints against the Lokpal could only be made by the government, which retained the power to suspend them.
The government’s Bill removed most public servants from the jurisdiction of the Lokpal, including the Prime Minister, MPs (insofar as their corruption pertained to their actions in Parliament), judges, and Class 2, 3 and 4 officers. Instead, it brought lakhs of NGOs (even those which were not funded by the government) within its jurisdiction.
Though the Bill kept the CBI with the government, it allowed the Lokpal to have its own anti-corruption investigative body. It eliminated the need to get prior sanction for investigation from the government. It provided for the confiscation of the assets of corrupt public servants and the recovery of losses caused by their acts of corruption from them. But it created a terribly cumbersome procedure for investigation, by which a preliminary inquiry and hearing of the corrupt public servant were made compulsory before investigation could begin. This ended the possibility of making surprise raids and seizures on the premises of corrupt public servants or their abettors.
Anna Hazare announced his second round of fasting in protest against this Bill, from August 16. This brought lakhs of people on to the streets across the country, and eventually forced the government to convene a special session of Parliament, where Anna’s three minimal demands were accepted by a unanimous Sense of the House resolution. Thus, all government servants and the citizens’ charter were to be brought under the Lokpal’s jurisdiction. The Bill would provide for Lokayuktas in the States on the same model as the Lokpal. The government promised to bring forward and pass such a strengthened bill in the winter session of Parliament.
Thereafter, the Bill was referred to the Standing Committee of Parliament, which after three months gave a fractured report with many dissenting notes. The Bill, which was reintroduced towards the end of the winter session, not only did not accept the one useful suggestion of the Standing Committee (negating the compulsory step of a preliminary enquiry) but went on to eliminate even the investigative body from the Lokpal. Thus, the Lokpal would not only be selected and suspended by the government, it would also have to rely only on government-controlled investigative organisations for its investigation. Class 3 and 4 officers were still kept out of the Lokpal’s ambit.
Those of us who worked on the mission with Anna Hazare had suggested 34 amendments to rectify the government’s Bill, and we pointed out that four of these were critical to making the Lokpal a workable institution. These were that the selection and removal procedure should be made independent of the government; the CBI should be brought under the Lokpal’s administrative control or, alternatively, the Lokpal should have its own investigative body; all government servants should be brought under the Lokpal’s investigative ambit; and the procedure for investigation should be in line with the normal criminal investigation procedure. But the government was adamant in not accepting any of these either, and went on to bulldoze the passage of its Bill. It rejected all the amendments moved by the Opposition. The Opposition moved several of the amendments suggested by us, but the only amendment that the government accepted was one to allow State governments to decide when the Bill would be applied to them.
The Rajya Sabha witnessed a sordid drama. Several parties which had walked out in the Lok Sabha (the Samajwadi Party and the Bahujan Samaj Party) or had not moved any amendments there (the Trinamool Congress) moved amendments in the Rajya Sabha and their representatives delivered fiery speeches opposing the provisions of the Bill. When it became clear that at least three of the amendments (those relating to the selection and removal of Lokpal members, the CBI being brought under the administrative control of the Lokpal, and the deletion of the chapter on Lokayuktas in the States) were likely to be passed, the government engineered disturbances in the House, resorted to filibustering and prevented the amendments from being voted upon. And the House was prorogued with the Bill hanging in the air.
The government was repeatedly telling us that by proceeding with protests while Parliament was considering the Bill, we were showing contempt for parliamentary democracy. We had responded by pointing out that by overlooking the wishes of the people as expressed in numerous polls, surveys and referendums, all of which showed that more than 80 per cent of the people favoured the Jan Lokpal Bill, the government was showing contempt for the people. The drama in the Rajya Sabha showed that the government was not even willing to go by the will of Parliament. This gives rise to fundamental questions about the functioning of Indian democracy. Is this form of representative democracy allowing the will of the people to be reflected in policy and law-making, or is it being held hostage to parties and their leaderships to be determined by their own whims or corrupt considerations? Has the time come for us to rethink and deepen our democracy by putting in place systems where laws and policies would be decided by decisive inputs of the people (through referendums and gaon sabhas, or village councils) rather than only by such “elected representatives”? We hope that this fundamental issue would bring about an even broader public engagement than what has been witnessed during this Lokpal campaign.
(The author, a Senior Advocate, is a member of Team Anna.)
- The saga of the Lokpal Bill (thehindu.com)
- Need for a more considered debate on lokpal (indialawyers.wordpress.com)
- ‘Constitutional Lokpal would have been difficult to repeal’ (indialawyers.wordpress.com)
- Lokpal and Lokayuktas Bill 2011 Introduced in Lok Sabha (indialawyers.wordpress.com)
- Lokpal debacle (thehindu.com)
PUBLISHED IN THE TIMES OF INDIA
With the Lokpal Bill becoming the focus of attention within and outside Parliament, Justice V N Khare, former chief justice of India, spoke with Rudroneel Ghosh on the constitutional dimensions of the anti-corruption legislation:
How does the failure to confer constitutional status on the Lokpal affect the anti-corruption ombudsman?
Such an anti-corruption ombudsman was earlier established in Haryana and Punjab through a legislative instrument, that is through an ordinary statute. But there were some political bigwigs who were involved in corruption and the Lokayukta was on the verge of catching them. What the government did then was it repealed the (Lokayukta) Act itself through an ordinance. This happened both in Haryana and Punjab. My apprehension is that if a political heavyweight is under investigation, and the ombudsman has been established through an ordinary statute, then a simple ordinance can be passed to scrap the whole institution. But if the body has constitutional status, then it can’t be amended like this. It would have been difficult to repeal the Lokpal had it been given constitutional status.
Can the opposition argue that the minority quota in the Lokpal is unconstitutional?
No. Consider Articles 15 and 16 of the Constitution. Nowhere do they talk about a Hindu, Muslim or Christian quota. What they say is that nothing will prevent Parliament from enacting a law for advancement of educationally and socially backward class of citizens and members of the scheduled caste. There’s no mention of religion. When you identify certain Hindu castes such as Yadavs, Kurmis, etc you don’t say ‘Hindus’ are getting reservation; you say they are backward groups and on this basis you give them reservation. Similarly, among the Muslim community you can identify certain backward segments and have a quota for them. So it’s not a question of religion but educationally and socially backward communities.
Does the Lokpal Bill impinge on the country’s federal structure?
Article 252 of the Constitution provides that in case Parliament doesn’t have the power to enact a law, it can on the request of the states make law for those states as well as whosoever is concerned with the law. Article 253 says that Parliament is empowered to enact laws for the enforcement of international treaties and UN conventions. For example, there is no legislative subject called human rights. But because we were a signatory to the UN Human Rights Convention, we enacted laws to establish the National Human Rights Commission. Similarly, the 2003 UN convention on fighting corruption empowers Parliament to make laws to tackle graft. It is on this basis that the Lokpal Bill has been introduced under Article 253. If the UN convention did not exist, then you could say the Lokpal Bill impinges on federalism. But not in this case.
Is there any merit in the Team Anna argument that the CBI should be brought under the Lokpal?
I don’t think that the entire CBI can be brought under the Lokpal. The CBI is a huge organisation whose investigative capabilities are used for so many things other than fighting corruption. At best you can put 50 or 60 CBI officers on deputation with the Lokpal. However, if the CBI is under the government and the government is the prosecutor, there is a clear conflict of interest in prosecuting government corruption. I believe the CBI should be autonomous in any case.
Do you think the Lokpal can be a magic bullet against corruption?
Not at all. Just like water finds its own level, people will find other routes to corruption. But the Lokpal can be a deterrent and create some fear in the minds of potential offenders.
JAITIRTH RAO IN THE INDIAN EXPRESS
India is fast becoming like Pakistan — a society where bizarre conspiracy theories are plausible, credible, even highly probable. We no longer blame the CIA for floods or outbreaks of dengue. But there is reason to believe that the political process is being manipulated to ensure sinister outcomes that are not apparent. On the surface, the Lokpal bill is supposed to create an institution independent of the executive branch precisely in order to investigate and act against corruption, malfeasance and wrongdoing of members of the executive — be they elected politicians or unelected officials. But dear reader, do not get misled. The hidden purpose of the present Lokpal bill is to undermine the independence of the judiciary, which, in recent times, has been one of the few checks on the executive branch.
How does this conspiracy work? Here goes:
The 50 per cent quota requirement for the Lokpal virtually ensures that the Supreme Court will strike down the law as it has been enacted. The Supreme Court has no choice if it goes by the doctrine of judicial precedence given its own past judgments restricting quotas to less than 50 per cent.
The introduction of a “minority” quota makes the situation even more awkward for the Supreme Court and almost inexorably sets up a conflict between the judiciary and the legislature. Linguistic and religious minorities are referred to in the Constitution only with respect to rights in the cultural and educational sphere. For instance, they can run schools and colleges with taxpayer support but without government interference. Incidentally, many are not aware of the provision for linguistic minorities as the expression “minority” has now become one used only on a religious basis in common parlance. By this token a Gujarati is a member of a “minority” community in Maharashtra and a Marathi-speaker gets the same position in Gujarat. Linguistic minorities have the same “cultural” rights under our constitution that religious ones do. However, and this is significant — there is no mention of reservations or quotas for “minorities” in the Constitution apropos of government appointments. The non-majoritarian and secular nature of our Constitution was best described by Justice Santosh Hegde in his intervention from the bench during the Keshavananda Bharati hearings. He said that our Constitution is secular in spirit without ever mentioning the word “secular”. This was of course before the completely illegitimate amendment made to the Constitution’s preamble by Parliament. The preamble was a mere statement of historical fact — that “we gave ourselves” a Constitution that came into effect on January 26, 1950. How can amendments be made at a later date to a historical fact?
Once the Supreme Court strikes down the Lokpal bill as it undoubtedly will, the stage will be set for a “popular” movement against the judiciary. Political workers will be brought into Delhi from neighbouring states. There will be public “pressure” on the government to bring under its “control” the recalcitrant “anti-minority”, “anti-reservation” court.
Selected ministers of the government will start attacking the judiciary for being reactionary and for not understanding the wishes of the masses.
The government will then try to overturn the present collegium-based appointment of judges of the higher judiciary and re-establish cabinet control over these appointments. Given our penchant for political amnesia, no one will remember that the collegium-based approach was a desperate one forced on the judiciary because of the arbitrary process used earlier by the government of the day to pick and choose as judges and as the chief justice individuals who were “pliable” and “committed” (presumably to the executive, not necessarily the Constitution). Cabinet ministers can conveniently recycle the thoughts of an earlier law minister, the authoritarian H.R. Gokhale, who felt that judicial independence was an undemocratic, reactionary legacy.
Our collective amnesia will also ensure that we forget that most of the legislature versus judiciary conflicts in the past were due to badly drafted (need I say, probably deliberately badly drafted) laws and ordinances, precisely like the present Lokpal bill. The hastily introduced “Bank Nationalisation Ordinance” of 1969 was struck down not for the act of nationalisation but because of the inclusion of inconsequential clauses on shareholder compensation and on the rights of erstwhile shareholders to freely engage in any business which remained their right under the Constitution. The even more hastily drafted ordinance “derecognising” maharajas was the result of the government of the day failing to win the vote for the bill in the Rajya Sabha. This was also struck down. In neither case had the Supreme Court shown any pro-rich or pro-maharaja bias. The court had merely struck down absurd self-contradictory clauses in the enactments. But the publicists of the self-styled left-liberal government of the day went to town accusing the judges of being reactionary and anti-poor. This set the stage for wholesale arbitrariness and political chicanery in judicial appointments. The Supreme Court’s “collegium” solution was a belated response to the shabby prevarications of the executive.
We can predict, as night follows day, that once the Lokpal bill is struck down, as it probably will be, we will have an open season in terms of attacks on the judiciary and the beginning of the emasculation of this constitutionally independent institution. Dear reader: the purpose of the deliberately badly drafted Lokpal bill is now clear. The purpose is not to create an “independent” Lokpal. The sinister purpose is to undermine our “independent” judiciary.
Independent institutions like the Supreme Court, the Election Commission, the Comptroller and Auditor General, the non-political armed forces and the Reserve Bank of India have saved India from becoming the home of real or imagined “conspiracies”. But don’t be surprised if this situation is now primed for change. The historical precedents and our amnesia do not suggest an optimistic prognosis.
The writer is chairman of the Nasscom Foundation
K K VISHWANATHAN IN THE INDIAN EXPRESS
The Lokpal bill has thrown up an important issue for the judiciary to ponder. Should the Chief Justice of India or a sitting judge of the Supreme Court be a member of the selection committee to appoint the Lokpal and, worse still, the director of prosecution? The committee is to be chaired by the prime minister, with the speaker of Lok Sabha, leader of the opposition in Lok Sabha and an eminent jurist nominated by the president as its other members. For appointing the director, it is a three-member committee, chaired by the prime minister, and with the leader of the opposition in Lok Sabha, apart from the CJI or the judge. Ostensibly, the provision looks benign, but in reality is fraught with serious issues of legality and, more importantly, propriety.
Not that judges never sit on committees. The collegium for appointment to the higher judiciary is, after all, a committee of judges; judges sit on the committee for appointment of members of judicial tribunals; they preside over advisory boards to opine on the continuity of preventive detention; it is a judges’ committee that inquires into charges of misconduct against their own brethren; and judges adorn the governing bodies of premier law colleges in the country.
None of the functions enumerated above is inconsistent with the role demarcated for the judiciary under the Constitution. They all pertain to matters concerning the judiciary or aspects integrally connected with it. Membership in a committee for the appointment of the Lokpal or the director of prosecution can never be bracketed with the above.
But what is so improper or illegal about their being members of the selection committee? The Lokpal is a glorified investigating agency. It inquires whether a case for prosecution for corruption is made out, and if so found, a case is filed in the special court against the individual concerned. The director of prosecution heads the prosecuting wing of the Lokpal. These functions are purely in the executive domain. No doubt, an incumbent or retired chief justice or an incumbent or retired judge can be considered for appointment as chairperson or judicial member of the Lokpal. A simple procedure for consultation with the judiciary, as it obtains in the Karnataka Lokayukta Act, would have more than fulfilled the requirement of fairness. The problem is in statutorily compelling the CJI or a nominated sitting judge to be a member of a selection committee, predominated by political personages.
Such a role will not only undermine the high office of a judge, it will also be a serious affront to the doctrine of separation of powers and an assault on the independence of the judiciary. This is quite apart from the fact that it ill behoves a sitting judge to engage in animated discussion with politicians on the merits and demerits of a likely appointee. It is not uncommon that similar appointments have been challenged before the higher judiciary and there have been cases where the selections have been found fault with and struck down. The Restatement of Values of Judicial Life states that a judge shall not express his or her views in public on matters likely to arise for judicial determination.
The Constitution favours an arm’s-length relationship with mutual respect between the organs of the state. It is not just friction, any kind of cosying-up would also cause unease in the citizenry.
There is another fundamental aspect of the matter. Before any duty, not directly connected with the discharge of judicial functions, is assigned, the government should take the judiciary into confidence. What if, after the bill is passed, the chief justice refuses to participate? Would that be an abdication of a statutory function? Judicial time is invaluable and any encumbrance on it should be constitutionally permissible and should always be with consent.
It is time the judiciary discussed in-house the issue as to when and in what circumstances can the government either statutorily or otherwise involve incumbents of the higher judiciary and allot them duties. If a sitting judge is to be spared even for a commission of inquiry, on a definite matter of public importance, the convention is to consult the judiciary, before making the announcement. It is a serious matter concerning the independence of the judiciary and neither the government nor the judiciary should be placed in a predicament, by resorting to hasty measures.
The writer is a senior advocate at the Supreme Court, email@example.com
RAJINDER SACHAR IN THE TRIBUNE
The debate on the Lokpal Bill requires calm and cool consideration. The timing of the debate, surcharged before the election in five states, is not conducive and is unlikely to do justice to the enormity of the task
The debate in Parliament on the proposed Lokpal legislation has unfortunately touched a nadir; instead of discussing the legislation in a sober atmosphere and making a conscious effort to arrive at as much consensus as possible, the political parties are instead indulging in acrimonious and heated exchanges.
The exercise of the government in furtively slipping in various quotas, including for the minorities, appears a deliberate one with one eye on UP elections, notwithstanding doubts on the legality of it expressed by former Supreme Court judges and jurists. Why would any one imagine that the selection committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha and the Chief Justice of India, would not consider members from amongst Muslims and women, when any number of them are available from these sections on their own merit ?
Why indeed was this non-issue allowed to take over the debate, unless it was a device to stall the Lokpal legislation ? Let us not forget that parties led by Mulayam Singh and Laloo Prasad were the ones which sabotaged the Women’s Reservation Bill by insisting on a sub quota for the OBCs. They managed to embarrass Sonia Gandhi and Sushma Swaraj, who had earlier embraced, without any embarrassment, and congratulated each other over their victory in the Lok Sabha. But they had to beat a retreat in the Rajya Sabha.
The suggestion that if there are allegations against the Prime Minister, they would be decoratively shelved and brought out after he remits office (which may be even 5 years later), also does not make any sense. An incumbent Prime Minister of Italy this year was forced to resign on corruption charges after he was found to be guilty by a court. Similarly Jacques Chirac, a former President of France was recently sentenced to 7 years of imprisonment, again for corruption while a former President of Israel has been sent to jail on grounds of sexual harassment and moral impropriety.
The most contentions matter of the CBI also remains unresolved. Ideally, the appointment of the Director, CBI should be by a joint committee consisting of the Lokpal and a Standing Committee of Parliament. Give the CBI Director a fixed tenure for five or ten years. He should have full administrative control over the staff of C.B.I. and over earmarked funds from the Consolidated Fund of India.
There should be no interference with his day to day work by the Central Government or the Lokpal. However the Lokpal would be entitled to ask and receive reports from him at regular intervals. The Director, CBI shall not be removed from service except in the manner and on similar grounds as a judge of the Supreme Court – in the same manner of removal, which applies to the removal of the Chief Election Commissioner.
Immunity for MPs
Surprisingly, not withstanding bitter wrangling on most other aspects, all Members of Parliament have unanimously agreed to keep themselves outside the ambit of the Lokpal and the CBI for any corrupt action and bribery inside the Parliament. To me this is scandalous and unacceptable.
In their defence, Members of Parliament invoke Article 105 of the Constitution, and the widely criticised majority judgment (3 against 2) in the Narasimha Rao case (1999). The minority judgment, however, had warned that this interpretation could lead to a charter for corruption and elevate Members of Parliament as “super-citizens, immune from criminal responsibility”.
It would indeed be ironic if a claim for immunity from prosecution, founded on the need to ensure the independence of Members of Parliament in exercising their right to speak or cast their vote in Parliament, is put forward by a Member, who has bartered away his independence by agreeing to speak or vote in a particular manner in lieu of illegal gratification. In other countries such a conduct of MPs is treated as criminal, since 1875, for example, in Australia.
The matter of Lokpal is too important and needs to be discussed more seriously and not under pressure of forthcoming elections in Punjab and in Uttar Pradesh. The knee-jerk reaction of the Central Government to Anna Hazare’s threat of fast, was possibly prompted by the Opposition’s eagerness to cash on the civil society movement and opposition leaders cosying up to Anna Hazare.
Their puerile excuse that they sat with Hazare because they wanted to explain their point of view is unacceptable political behaviour. Political Parties should hold their own meetings to explain their position to the public. Anna Hazare does have the right to muster support, arouse masses and exercise his democratic rights – and to put pressure on the government and even the Parliament, to pass a particular law because the ultimate sovereign are the people. But there is a caveat that this discussion requires a calmer atmosphere. Could the parties unanimously agree to adjourn the discussions till after the UP elections are over, with a pledge to pass the legislation as the first item when Parliament begins its next session ?
As a measure of his genuine concern for a strong Lokpal, Anna Hazare on his part, one hopes, would reciprocate by not going on fast or agitation. He can rest assured that people’s determination to have a strong Lokpal is not so weak as to let the government ignore its solemn pledge to pass the Bill.
If the government prevaricates, it must know that consequences could be monumental and no government can remain in permanent confrontation with its real masters, the people of India.
The writer is a former Chief Justice of Delhi High Court
But the flaws in the Bill cannot be settled on the street. Agitations may even destroy the country
Kuldip Nayar IN THE TRIBUNE
The amended Lokpal Bill being debated in Parliament does not appear to give enough powers to the institution of the Lokpal (Ombudsman) to deal with corruption within the government. Despite the government claiming that it has given enough powers in the Bill and addressed the concerns raised by Anna Hazare, he has already rejected the Bill introduced in Parliament and has proceeded on fast in Mumbai. He has also threatened to demonstrate outside the houses of ministers and MPs in New Delhi. He has also called upon the people to fill the jails (Jail Bharo) and has warned the Congress that he would himself campaign against the party in the forthcoming elections in five states. The ruling Congress President Sonia Gandhi has picked up the gauntlet, declaring that the party is ready for the fight.
The key issue is control over the Central Bureau of Investigation (CBI). The government has rejected the demand for transferring its administrative control to the Lokpal or to any independent agency. Apparently, the government has a lot to hide and, therefore, cannot allow its omissions and commissions to be exposed.
The UPA government led by Manmohan Singh has used the CBI to put pressure on UP Chief Minister Mayawati and former Chief Minister Mulayam Singh Yadav, whenever it has been threatened with defeat in the Lok Sabha. The Congress has a strength of 207 in the 545-member Lok Sabha. The pressure works because both Mayawati and Mulayam Singh are facing CBI cases for their disproportionate assets.
The Congress alone cannot be blamed though. All governments, including the one led by BJP leader Atal Bihari Vajpayee have used the CBI to serve their own interest. A senior opposition leader from Bihar admitted on the floor of the Lok Sabha that they too had misused the CBI when they were in power. Many former directors of CBI have recorded in books they have written after their retirement that they were pressurised by one government or the other to prosecute or not to prosecute in an assortment of cases involving politicians and political parties.
I was a member of the Rajya Sabha when the Bill to spell out control over the CBI came up before the Parliamentary Standing Committee on Ministry of Home Affairs. The then Chief Justice of India J.S.Verma had proposed in a Hawala case to set up an independent Directorate of Prosecution (DOP) to have control over the CBI. But no political party — all of them were represented in the Committee — wanted the CBI to be autonomous.
I was disappointed when Justice Verma’s proposal was summarily rejected. The administrative control of the government over the CBI was endorsed. So much so that the Committee restored the Single Directive which the Supreme Court had thrown out. The Single Directive meant that the government’s permission was required before initiating an inquiry or action against officers of the rank of Joint Secretaries and above. There is hardly a minister who does not use these officers to serve his own or his party’s interests. The details of the 2G Spectrum scam, now revealed by the CBI, show how ministers were in league with the private parties in the allotment of licences without following any of the established rules.
The Lokpal is toothless without control over the CBI and will be quite helpless to probe into the misdeeds of ministers or senior officials.
My main objection is against the provision for 50 per cent reservation. Quotas are alright in jobs or educational institutions. But when we are selecting people for Constitutional positions, we want the best talent available. I am told that in the Congress, some voices have been raised for having reservations in the High Courts and even the Supreme Court. What kind of India are we building when parochialism is on the agenda of political parties for the sake of placating voters of one community or the other?
Unfortunately, the government has already conceded the enumeration of castes in the in the 2011 census. I wish the counting was designed to learn how many poor people are there in the country. By introducing reservation in the Lokpal, the government is sowing seeds of division and conflict in the fight against corruption. I hope that Anna Hazare would raise his voice against reservation in Lokpal.
Anna’s firm ‘no’ to the Lokpal Bill indicates that the battle may go to the streets. This is undesirable and will destroy the country. Political parties should collectively think how to sort out the issue without agitations. The dictum that the loss of one is the gain of the other is shortsighted. Whatever the moves or counter-moves of political parties, people should be vigilant and not play into their hands.
G P JOSHI IN THE INDIAN EXPRESS
The debate on the Lokpal bill has thrown up three propositions about the CBI. One, retain the status quo; two, transfer the control to the Lokpal; and three, make the CBI an independent organisation. The CBI is now governed by an outdated act of World War II vintage, called the Delhi Police Establishment Act, which was enacted in 1946 to regulate the functioning of the Special Police Establishment. Section 4 (1) of this act vests the superintendence of the CBI in the Central government, just as Section 3 of the police act of 1861 vests the control of the state police force in the state government.
Since the word “superintendence” has not been defined in any law, both the Central and state governments have misused police forces to serve their partisan interests. There is a general perception that the CBI, like other police forces in the country, is influenced in its work by political considerations.
Can any government ever think of making the CBI an independent organisation? If one plays the devil’s advocate, one can think of two arguments that the Central government can cite in favour of retaining its control over the CBI. First, any police force, including the CBI, is a part of the executive, and in the Westminster model of governance that we have adopted, the minister concerned is responsible to Parliament for the efficient and honest functioning of his departments. Second, the police, including the CBI, enjoys tremendous powers and it is important for the government to ensure these powers are used judiciously.
While the first argument can be considered valid, the second can be contested. It is true that in a democratic system, police powers need to be controlled to prevent their misuse, but then it has to be realised that controlling the police itself becomes a source of tremendous power that can be misused to serve partisan interests, as has happened so frequently in this country. What is needed is to set up institutions and mechanisms to balance these two requirements.
In the judgment on the hawala case, the Supreme Court tried to make one such attempt. While the court transferred the responsibility of exercising superintendence over the CBI’s functioning from the government to the Central Vigilance Commission (CVC), it simultaneously held that the concerned minister should be ultimately responsible for its efficient functioning to Parliament. The court maintained that none of the minister’s powers could extend to interfering with the course of investigation and prosecution in any individual case. Investigation is to be governed strictly by the provisions of law.
Unfortunately, the government did not implement the judgment of the SC either in letter or in spirit. The Central Vigilance Commission Act of 2003 derailed the judgment in three important ways. One, it resurrected the Single Directive despite the fact that the court had held it null and void, being bad in law. Two, it did not transfer superintendence to the CVC fully. The CVC Act 2003 prescribed that the CVC shall exercise superintendence not over the CBI but over the Delhi Special Police Establishment (DSPE) only, regarding cases registered under the Prevention of Corruption Act 1988. Third, in exercising superintendence over the organisation, the government did not keep itself within the boundaries as defined in the judgment.
The possibility of misuse of the police by the government of the day has caused concern in other countries too. They have found solutions by developing traditions of good governance and setting up new institutions. The UK seems to have successfully implemented a very subtle distinction between the police as an organisation and policing as a set of activities. While the police as an organisation is the responsibility of the government, policing as a set of functions is the responsibility of the head of the police force. Government’s role is to formulate policies, provide budget, set standards and monitor performance, but it cannot give any operational direction to the police chief. The police acts in some other regions and countries have dealt with this problem by clearly defining the role and responsibilities of the government and the police department. In Queensland in Australia, communication between the minister and the commissioner of police is guided by clear provisions of the police act. Directions from the minister have to be in writing and the commissioner of police is bound to comply with the directions, but keep a record of all correspondence, which is later placed on the floor of the assembly.
In India, there could be mechanisms and institutions that will ensure the CBI’s functional autonomy, as no government will ever agree to relinquish its control over an organisation like the CBI. Also, the Lokpal could have its own independent investigating agency, which need not necessarily be the CBI.
The writer is a former director, Bureau of Police Research & Development, firstname.lastname@example.org
THE HINDU AND PRS LEGISLATIVE
SOURCE: THE HINDU
RAJINDER SACHAR IN THE TIMES OF INDIA
The debate in Parliament on the Lokpal Bill has unfortunately touched a nadir. Instead of discussing the proposed legislation in a sober atmosphere and with conscious effort to arrive at as much consensus as possible, political parties have instead indulged in mutual attacks. The government’s furtive slipping in of various quotas, including for the minorities, was a deliberate ploy with an eye on the UP elections. This, despite the doubts on the move’s legality expressed by former Supreme Court judges and jurists. Could anyone imagine that the selection committee composed of the prime minister and leader of the opposition, irrespective of their party affiliation, and a non-political chief justice of India, would not include members from among Muslims or women based on their own merit? Why was this non-issue raised unless it is a device to stall the legislation? Let us not forget that the Mulayam Singh-Lalu Yadav groups sabotaged the women’s reservation Bill by insisting on quotas.
Further, the suggestion that any allegations against the prime minister would have to be decoratively pigeonholed and brought out only after he remitted office (which may be five years later) does not make sense. Are we living in a democracy or under the kingship of a representative of the divine?
Also, the most contentious matter relating to the CBI remains unresolved. Its director’s appointment should be by a joint committee consisting of members of the Lokpal and the standing committee of Parliament. Give him a fixed tenure of, say, five to 10 years. He should have full administrative control over CBI staff and earmarked funds from the Consolidated Fund. There should be no interference in his day-to-day functioning from the government or the Lokpal. However, the Lokpal would be entitled to ask for and receive reports from him at regular intervals, and also authorised to convey its decisions on such matters. He should not be removed from service except in the manner and on like grounds as a Supreme Court judge – the same applies to the chief election commissioner.
I for one would not limit the choice necessarily to a police official; he could even be from outside the service. If it’s decided to have a chief vigilance commissioner, the same conditions and procedure could apply to the CBI director.
Surprisingly, notwithstanding bitter wrangling on other aspects, all members of Parliament agree to keep themselves immune from the ambit of the Lokpal and even the CBI for corrupt actions and bribery if committed inside Parliament. To me, this is scandalous and unacceptable. In their defence, MPs invoke Article 105 of the Constitution, and the widely criticised majority judgment of three against two in the Narasimha Rao case, 1999 (I believe the matter is referred to a larger bench).
The minority judgment, however, warned that this interpretation could lead to a charter for corruption so as to elevate MPs as “super-citizens, immune from criminal responsibility”. It would indeed be ironic if a claim for immunity from prosecution – founded on the need to ensure the ‘independence’ of MPs in exercising their right to speak or cast their vote in Parliament – could be put forward by a member who has bartered away his independence by agreeing to speak or vote in a particular manner in lieu of illegal gratification that has been paid or promised. By claiming the immunity, he would only be seeking a licence to indulge in corrupt conduct. In many other countries, such conduct of MPs is treated as criminal.
To invoke Article 253 of the Constitution for enactments concerning Lok Ayuktas is of doubtful legality and imperishable in our federal set-up. Surely no state can resist the public sentiment built in favour of Lok Ayuktas.
The matter of the Lokpal is too important and needs to be discussed more seriously, and not under pressure related to the forthcoming elections in Punjab and especially UP. Also, the panicky reaction of the government to Anna Hazare’s fast is compounded by the opposition wanting to cash on it, as when they went to his recent sit-in to cosy up to him. Their puerile excuse that they wanted to explain their point of view is unacceptable. Political parties hold their own meetings to explain their position to the public. We go to Jantar Mantar to show our solidarity with the victims of forced displacement or against the government’s illegal actions against the deprived poor. Parties do not go to the sit-in of a person they now want to deride and ridicule.
Of course, I agree Anna Hazare has full right to muster support from the masses and exercise his democratic rights, as well as put pressure on the government and even Parliament to pass a particular law. For, the ultimate sovereign is the people. But the caveat is that the discussion on the Lokpal requires a calmer atmosphere. Therefore, political parties should unanimously agree to adjourn the discussions till after the pressure of the UP elections is over, with a pledge to pass the legislation as the first item when Parliament begins the next session.
As a measure of his genuine concern for a strong Lokpal, Anna ought to reciprocate by not going on fasts. He can rest assured that the people’s determination to have a strong Lokpal is not so weak as to let the government avoid its solemn pledge to pass the Bill in the next session of Parliament. If the government further prevaricates, most know that the consequences could be monumental. No government can remain in permanent confrontation with its real masters, the people of India.
(The writer is a former chief justice of the Delhi high court)
The Lokpal and Lokayuktas Bill, 2011 was introduced along with a Constitutional (116th Amendment) Bill during the winter session of the 15th Lok Sabha on December 22, 2011. Here are the full texts of the Bills along with the errata in PDF format.
The Chairman of the Parliamentary Standing Committee on the Lokpal Bill, on corruption and the most pragmatic ways to check it.
Rajya Sabha MP and Congress spokesperson Abhishek Singhvi chaired the 30-member parliamentary panel that presented its voluminous report earlier this month on the Lokpal Bill 2011. The report has points of divergence with both the official Lokpal Bill draft and the Team Anna version. (The Union Cabinet on Tuesday night approved a Bill for the creation of the Lokpal with constitutional status that will have no control over the CBI but brings within its purview the Prime Minister with a number of safeguards.) Excerpts from an interview with Mukund Padmanabhan, held earlier in the day.
At the heart of the upsurge of public anger against corruption, which a strong Lokpal Bill has come to symbolise, is a basic truth. Namely, that our criminal justice system, particularly when it comes to corruption, is constantly subverted by political interference in the work of investigation and prosecution agencies. Do you agree?
I agree with the sentiment but not with the way you put it. I think you are entirely right in that there is a great amount of legitimate frustration about the criminal justice system, the sloth and the inefficiency.
I will not deny political interference. But I believe that its statistical occurrence is highly exaggerated. Also, at least during the last five years of transparency and media scrutiny, it is not that easy for the CBI and the police forces to convert black into white. Lastly, the attempts at political interference may be greater than the actual results because there is a great amount of both judicial and media scrutiny.
So in other words, judicial delay is a bigger problem than the lack of an independent investigation and prosecution mechanism?
Far bigger. The second is definitely there, but exaggerated.
Your preface in the standing committee report on the Lokpal Bill presented to the Rajya Sabha strikes a philosophical note. You state that the Lokpal Bill resides in the limited ex-post facto punitive sphere and is no substitute for significant “prophylactic” initiatives. It’s impossible to disagree with this, but it raises the obvious question: what have we been doing about preventive mechanisms all this while?
Progress has been made but it has been slow. But during the last year and a half, the progress on corruption — including prophylactic measures — has been remarkable. Unfortunately, in the debate on the Lokpal, which is a very important punitive measure, the prophylactic and policy initiatives have got lost. As I said in my report, sometimes policy is more important than law.
Allow me to list you some of the steps taken. Roughly 62 bilaterals and 20 further one-to-one treaties [have been signed] in the last two years on black money. It now means that there are 80-odd countries around the world that are obliged to give you information on this. The Whistleblowers’ Bill, a recommendation of our standing committee, will come [before Parliament] very shortly. The Citizens’ Charter Bill will possibly be introduced with the Lokpal Bill or in the next session.
The report of the Ashok Chawla Committee [set up to recommend how government allocates key natural resources] has made specific suggestions. According to me, there are three areas — realty, mining, discretionary powers. There is a listing of all the discretionary powers at the Central-government-level in each department, many of which can be abolished. This itself will make a huge difference. On mining, we are on the threshold of a brand new law; the existing mining law is antiquated and breeds corruption. As for real estate, both the Land Acquisition Bill and other policy initiatives on black money will make a lot of difference. These initiatives will have an effect if they are applied synergistically and given at least two years to operate.
Coming back to the Lokpal, there were sharp divisions in the parliamentary panel you headed on key issues. At the same time, you suggested that the dissent was minimal and there was a considerable amount of unity on a range of issues. In what areas do you think the standing committee made advances vis-à-vis the earlier draft of the Lokpal Bill?
This is a very important question. This report is nowhere like a government draft. Chalk and cheese, earth and sky — that is the difference. Our approach has been not merely to look at the Lokpal Bill draft, or the Jan Lokpal draft or the Aruna Roy draft.
Ours has been to see that the overall structure is workable, valid and efficacious. We believe that in many areas the Jan Lokpal is too starry-eyed and idealistic, and not workable. In some areas, we believe the government draft is retrogressive.
So we have struck a new course. Consider the dissent, which there has been a lot of misinformation about. This was not a normal committee report. It was unusual because in two-and-a-half months, it decided on 23 issues, not just one or two like most committees. Of the 23, there was absolute unanimity on 12 issues. Of the remaining 11, in three issues there was a majority of 29 and only one dissenting voice. On another six, there were 22 for and eight dissents. There was real dissent only on two issues — the CBI (20 to 10) and the inclusion of the lower bureaucracy (17 to 13).
But going by Team Anna and the attention they receive in the media, aren’t these issues the nub? And on the question of including the Prime Minister under the Lokpal, the standing committee left this to Parliament…
Sorry, but there is no dissent there. I could have given the majority view which was for inclusion with deferred prosecution. I was excessively reasonable in putting forward three [divergent] views, all of which had resonance.
Team Anna alleged that by leaving the Citizens’ Charter and the lower bureaucracy out, you had disrespected Parliament and violated the Sense of the House resolution passed in August.
This is a complete misunderstanding. Look at what the Finance Minister said in his reply to the debate in Parliament, which is quoted in the report. He said, “This House agrees in principle on the Citizens Charter, Lower Bureaucracy to be brought under Lokpal through appropriate mechanism and establishment of Lok Ayuktas in the States.” What this suggests is that we must pass a law on the Citizens’ Charter, which we are doing. As for the Lok Ayuktas, we have recommended a common Lokpal-Lok Ayukta Bill, something that goes against the government draft. Being under the Lokpal only applies to the lower bureaucracy. But look at the resolution closely. It says the lower bureaucracy must be brought under the Lokpal through an “appropriate mechanism”…
…Which you imply you have addressed by making the Central Vigilance Commission, which will cover the ‘C’ and ‘D’ level employees, accountable in a way to the Lokpal?
Yes, there is a method to the madness. We don’t want a top-heavy Lokpal set up. We want it to be lean, mean and efficient. To prevent a new organisation from becoming top heavy, if you utilise the CVC, which for the first time will have ‘C’ class employees under it, aren’t we improving the situation? The CVC will then be obliged to file two or three monthly reports to the Lokpal, which will then issue advisories on the basis of this.
The standing committee has recommended both Group ‘A’ and ‘B’ officials come under the Lokpal, unlike the government draft which included only ‘A’. We made a huge jump — this is being forgotten in the controversy. From ‘A’ to ‘B’, the group comprises everyone down from Prime Minister to Section Officer.
Wasn’t the Lokpal conceived as a new mechanism to deal with medium-ticket and big-ticket corruption? Or was it to go below level ‘C’ and include drivers, clerks and peons?
I am not suggesting that drivers and peons are not corrupt. But the Section Officer is the first to write an opinion on the file. From there on it goes upwards. We have said that the ‘C’ group which was not covered until now should come under the CVC. What wrong have we done? They speak as if we have cheated the nation.
There is also a certain amount of misinformation circulating regarding the CBI and investigation. The report deals entirely with Lokpal-referred investigations. The suggestions in it regarding preliminary inquiry, abolition of sanction, separation of investigation and prosecution et cetera are all recommendations made in the context of Lokpal-referred investigation.
It does not seek to deal with a large number of other cases dealt with by the CBI, including murders or those referred to the agency by the higher judiciary.
Isn’t it odd that a legislation to check corruption in government should include NGOs, corporates and the media? This seems a little like tit-for-tat. The NGOs and the media wanted strong legislation against official corruption, so lets put them into the net as well.
This is not true. We have included only NGOs, companies, associations, trusts owned or controlled by the government or those that receive large public donations. The other test is whether they receive donations above a certain amount under the Foreign Contribution Regulation Act. There are figures to show the volume of foreign funding is enormous and the accountability of this is very limited.
And this is necessary? Wouldn’t it dilute the work of a lean, mean Lokpal?
This is necessary because you are dealing with corruption. Today, corruption is accountability. Look at the United Kingdom Bribery Act, a remarkable piece of legislation, which applies to literally everybody — the public and private sectors, U.K. firms acting abroad, non-U.K. citizens acting in the U.K. We have said we need a model like this in tackling bribery. You can’t draw artificial Chinese walls when it comes to a particular sector.