LAW RESOURCE INDIA

Reporting guidelines: Supreme Court expands scope of deliberations

Posted in DOMESTIC VIOLENCE, MEDIA ETHICS, MEDIA ISSUES, MEDIA LAW by NNLRJ INDIA on April 7, 2012
SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

A petitioner has pleaded the Supreme Court to frame guidelines and norms for coverage of criminal cases pending investigation “so that the right of privacy and to live with dignity is not at the mercy of irresponsible press or media as has been done in the case of the recent Aarushi murder case”.

 NEW DELHI: The purview of the Supreme Court’s deliberations to frame guidelines for how media should report sub-judice matters, which arose from indignation over a news report on “leaked” privileged communication between the counsel of Sahara Real Estate Corporation and Sebi, has now been expanded to include related cases which had been pending in the apex court since 1999.

While hearing Sahara’s application, a five-judge bench headed by Chief Justice SH Kapadia had directed that “any party, who desires to make submissions in the matter, may do so by way of intervention”. This prompted several public spirited lawyers and organizations to intervene in the deliberations.

During the discussions, the court had appeared to narrow down the issue before it to a debate on the framing of guidelines for reporting of criminal trials to guard against violation of Article 21 guaranteeing right of an accused to reputation and dignity and to ensure that his trial does not get prejudiced, and the witness protection mechanism is not impacted.

However, on April 4, the court ordered inclusion of four more media guideline-related petitions, two of which were pending since 1999 and 2000, within the zone of consideration by permitting the parties involved to make submissions on “framing of guidelines for reporting of cases in media” when the matter is taken up for hearing on April 10. This at once broadened the scope of the exercise.

The issues raised in these four petitions include norms for news coverage in electronic media, norms and guidelines to minimize presentation of sexual abuse and violence on TV channels, contempt proceedings against journalists for publishing confessional statements of accused before police and making police liable for damages for tarnishing the reputation of an accused by releasing details of investigation into a case.

In Criminal Appeal No. 1255 of 1999 titled PUCL vs State of Maharashtra, the News Broadcasters Association had desired to intervene and assist the apex court on the issue of “what norms should govern news coverage by the electronic media”. On November 5, 2008, a bench headed by Justice Dalveer Bhandari had issued notices to all state and Union Territory governments.

The writ petition (civil) No. 387 of 2000 titled Common Cause vs Union of India last came up for hearing before the court in July 2009. The relief sought by the NGO was to “prescribe definite norms and guidelines for minimization of presentation of scenes of violence and sexual abuse in serials and programmes telecast by TV channels for avoidance of undesirable mental impact on the viewers, particularly children”.

In the transfer case 27 of 2011, NGO Anhad had sought initiation of contempt proceedings against two senior journalists for “publishing confessional statements of accused before police and thereby prejudicing or tending to prejudice the due course of judicial proceedings of those accused”.

Ban sought on cops leaking case information

Anhad had also sought a direction to the government to lay down guidelines “to be followed by both police and media regarding release of evidence or information and its publication against the accused claimed to be obtained by police during interrogation or investigation when the matter is sub-judice”.

The fourth petition included in the list was a writ petition filed by Dr Surat Singh in 2008 in the aftermath of media reporting of UP police’s version of the Aarushi murder case and the role of the accused. He had sought a complete ban on police leaking any information to media about pending investigations. He had also requested the court to make police officers personally liable for rushing to media and “making adverse comments or character assassination of an accused or his family members/friends or about the victim”.

Singh had sought framing of guidelines and norms for coverage of criminal cases pending investigation “so that the right of privacy and to live with dignity is not at the mercy of irresponsible press or media as has been done in the case of the recent Aarushi murder case”.

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Legal concerns

Posted in ACCOUNTABILITY, ANNA HAZARE CAMPAIGN, CONSTITUTION, CORRUPTION, DEMOCRACY, GOVERNANCE, JAN LOKPAL by NNLRJ INDIA on September 6, 2011
JAN LOKPAL BILL

JAN LOKPAL BILL

V. VENKATESAN IN THE FRONTLINE

In its effort to recommend an effective Lokpal Bill, the Standing Committee has to consider all the nuances of the views of civil society.

THE 31 members of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, drawn from the Lok Sabha and the Rajya Sabha, have an onerous task on hand as they begin to scrutinise the Lokpal Bill. They cannot discuss the government’s Bill oblivious to the anti-corruption movement led by Anna Hazare, which resulted in extraordinary debates and an identical sense-of-the-House agreement in both Houses of Parliament on August 27.

The committee’s Chairman, Abhishek Manu Singhvi, a Congress MP and a senior advocate in the Supreme Court, has promised several surprises in its recommendations on the Bill and is of the view that 80 per cent of the Bill will be changed after the committee submits its report before the winter session of Parliament begins.

This is the first time that members of the Standing Committee will be discussing the provisions of a government’s Bill on the basis of a sense-of-the-House agreement, which is a rare expression of the collective will of the House on a piece of legislation and is a corrective measure. In a sense, it amounts to an admission by all the parties in Parliament that they failed to read the public opinion at the time of introduction of the government’s Bill and therefore they want to ensure that the committee considers the key concerns expressed by the public over the Bill’s omissions.

It is possible that the committee will, in any case, be apprised of these concerns during its two-month-long interaction with the public, seeking comments and suggestions and hearing testimonies from select representatives of civil society and other stakeholders. Yet, the sense of the House on these concerns means that the committee cannot finalise its recommendations without considering that agreement. The committee’s report is not binding on Parliament, which has to debate the provisions of the Bill again, in the light of the recommendations.

The three concerns over which Parliament expressed its sense-of-the-House agreement in response to Team Anna’s demands in order to make Anna Hazare end his fast constitute the salient features of the Jan Lokpal Bill. The agreement was carefully worded in view of the differences among members over how to resolve the three concerns:

“This House agrees in principle on the following issues: Citizens’ Charter, Lower Bureaucracy also to be under the Lokpal through appropriate mechanism, and establishment of Lokayuktas in the States.”

Union Finance Minister Pranab Mukherjee requested the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha to transmit the proceedings of both the Houses on August 27 to the Standing Committee for its perusal while formulating its recommendations on the Bill.

The government has also forwarded to the committee the Jan Lokpal Bill and the comments and suggestions of Aruna Roy’s National Campaign for People’s Right to Information (NCPRI) and those of the Lok Satta party founded in 2006 by Jayaprakash Narayan, a former Indian Administrative Service officer.

The Jan Lokpal Bill, proposed by India Against Corruption (IAC), envisages a single institution that will cover all public servants and at all levels, from the Prime Minister down to the peons, which means all Ministers, elected representatives, civil servants and members of the judiciary. The NCPRI, however, is of the view that this will make the Bill too unwieldy and lead to the concentration of too much power in a single institution.

The NCPRI proposed three different institutions, namely, a national anti-corruption commission, called Lokpal, to tackle corruption of all elected representatives and senior bureaucrats; the Central Vigilance Commission (CVC) to be an investigative, prosecution and appellate authority for the remaining categories of civil servants; and a judicial accountability commission to investigate charges of corruption and misconduct against sitting judges.

While both the IAC and the NCPRI agree that the anti-corruption wing of the Central Bureau of Investigation can be transferred to the proposed Lokpal, the NCPRI wants the anti-corruption wing of the CBI dealing with the lower bureaucracy transferred to the CVC. The latest draft of the Jan Lokpal Bill is silent on the CVC’s future despite its previous version stating that the CVC be subsumed in the Lokpal and the CVC Act be repealed.

The Lok Satta’s model is similar to that of the NCPRI. According to it, the CVC (Chairman and two members) should be ex-officio members of the Lokpal and should be appointed in the same manner as the Lokpal. The CVC will perform all functions as envisaged under the law except that the allegations against Group A officers and above will be referred to the Lokpal. Once the CVC is integrated with the Lokpal, that body will exercise superintendence and guidance of the CBI. The CBI should be divided into two agencies – the normal crime investigation wing and the anti-corruption wing. The anti-corruption wing of the CBI will be accountable only to the CVC and not to the government. In States, the anti-corruption bureau will be directly under the Lokayukta, according to the Lok Satta proposal.

The differences among these three models are not in substance, but only in form. Hopefully, the appropriate mechanism which the committee will recommend should satisfy the authors of these three models.

On the Citizens’ Charter, the sense-of-the-House agreement is silent on the modalities. The Jan Lokpal Bill makes repeated violation of the Citizens’ Charter by any public servant an act of corruption. It defines “grievance” as a claim by a person that he could not get satisfactory redress according to the Citizens’ Charter despite approaching a public grievance redress officer ((PGRO) of the department concerned. The Bill also states that the Citizens’ Charter shall enumerate the public authority’s commitment to the citizens that are capable of being met within a specific time limit, and shall designate the officer whose duty would be to fulfil the commitment of the public authority.

The Jan Lokpal Bill further states that it shall be the duty of the PGRO to get the grievance redressed within 30 days from the receipt of the complaint. If he fails to do so, a complaint could be made to the Lokpal. The Lokpal, after hearing the PGRO, would impose suitable penalty not exceeding Rs.500 for each day’s delay, but not exceeding Rs.50,000, to be recovered from his salary. The Lokpal may also recommend imposition of departmental punishment on such PGROs.

The NCPRI feels that the Lokpal should not be involved in grievance redress because it is impractical, given the numbers that would be involved and the need to tackle grievances in a decentralised manner. It, therefore, suggests the setting up of an independent, specialised and professional grievance redress commission to redress grievances effectively in a decentralised and time-bound manner.

A three-member Bench of the Lokpal, according to the Jan Lokpal Bill, may direct any public authority to make changes in their Citizens’ Charter, and that public authority shall make such changes within a month of the receipt of that order.

The Lok Satta too agrees with the NCPRI that grievance redress should not be part of the Lokpal’s jurisdiction, but should come under a grievance redress authority to be formed at the Centre and in the States. Team Anna insists that grievance redress should come under the Lokpal because it has defined grievance non-redress as an act of corruption. The NCPRI and the Lok Satta do not seem to agree that grievance non-redress should be deemed to be an act of corruption.

However, when the Jan Lokpal Bill provides for an appellate grievance officer (AGO) in each district to receive grievances and requires that there shall be a social audit of each AGO every six months, it is not clear why the AGO cannot perform the functions of the Lokpal, as envisaged in the earlier drafts of the Jan Lokpal Bill.

The IAC’s difference with the NCPRI seems to be only over the definition of corruption, which is basically an academic, rather than a practical, issue. If the objective of grievance redress can be achieved under a different authority in a more effective manner than what has been proposed in the Jan Lokpal Bill, clearly Team Anna could consider the proposed alternative rather than insist on the literal adoption of its draft.

Both IAC and the NCPRI agree that the Lokpal, as an institution, should be replicated at the State level through appropriate Lokayuktas. The Lok Satta adds that the Lokayuktas should be appointed in a similar manner by a State-level selection committee and should have similar powers, protection and functions as that of the Lokpal.

It further adds that with the ratification of the United Nations Convention Against Corruption (UNCAC), Parliament, under Article 253 of the Constitution, has the power to make laws for the entire territory of India even on State subjects in matters relating to corruption. Although the Central government initially had reservations over the demand that the Bill could create Lokayuktas in States, it has now come around to the view that it could enact a model law for the States to adopt without violating the federal principle.

The Jan Lokpal Bill, according to its framers, would be called the Anti-Corruption, Grievance Redressal and Whistle-blower Protection Act. This suggests that the last two aspects are not subsumed under anti-corruption. Therefore, the NCPRI’s basket of measures proposing a separate grievance redressal commission and a distinct and strong whistle-blower protection law makes sense. Chapter XI of the Jan Lokpal Bill, with just one section and five sub-clauses, deals with protection of whistle-blowers. The NCPRI has come out with detailed notes for discussion on strengthening the Whistle-blower Protection Bill, currently pending in Parliament.

The fact that Team Anna wanted Parliament to commit on only these three issues makes it clear that it is flexible on other contentious issues such as the exclusion of the Prime Minister from the Lokpal’s ambit if the allegations against him pertain to national security and defence.

The government’s Bill includes in its ambit corruption in non-governmental organisations (NGOs). Team Anna’s answer to this is that the investigation of allegations of corruption in NGOs by the police does not lead to any conflict of interest and therefore such allegations can be kept outside the purview of the Lokpal. However, if the allegation mentions that a public servant sought to influence the investigation of corruption in an NGO, the Lokpal can investigate it and prosecute the accused.

Team Anna has also answered the criticism that the Jan Lokpal Bill is silent on corporate corruption by drawing attention to Section 6 (o), according to which the Lokpal’s function is to recommend cancellation or modification of a lease, licence, permission, contract or agreement if it was obtained by corrupt means and to recommend blacklisting of a firm, company, contractor or any other person involved in an act of corruption by the public authority. In the event of rejection of its recommendation, the Lokpal may approach the appropriate High Court for relief.

Another provision is Section 31 (1), which says that no government official shall be eligible to take up jobs, assignments, consultancies, etc., with any person, company, or organisation that he had dealt with in his official capacity. Subsections (2) and (3) of Section 31 call for complete transparency in the award of contracts, public-private partnerships, agreements or memorandums of understanding (MoUs).

Team Anna probably did not consider these provisions critical enough to bargain for their inclusion in the sense-of-the-House agreement even though they seem to be more significant than the three ‘sticky’ issues that it identified as the roadblocks that prevented Hazare from ending his fast.

It is ironical that Team Anna, which had initially questioned the relevance of the Standing Committee fine-tuning and improving the provisions of the government’s Bill, now sets great store by its ability to make a difference to the Bill.

Perhaps its confidence was restored after the committee’s recommendations on the Judicial Standards and Accountability Bill, referred to it by Parliament, became public. In its report, the committee is of the view that the government has to move beyond an incremental approach and give urgent and due thought to a holistic legislation encompassing the appointment process and other related matters to ensure judicial accountability for improved administration of justice.

In particular, the committee has recommended dilution of the provision imposing severe punishment for frivolous and vexatious complaints so that genuine complainants are not discouraged from complaining against the misbehaviour of a judge. The Bill prescribes imprisonment of up to five years and a fine of up to Rs.5 lakh for those found to have made false complaints against a judge.

The committee has also recommended the inclusion of non-judicial members in the composition of the complaints scrutiny panel, on whose decision alone a complaint could be considered by the National Judicial Oversight Committee. The Standing Committee has also recommended the need to broadbase the membership of this oversight committee with nominees from the executive, the legislature and the judiciary, and make it inclusive with representatives of all social classes.

Team Anna has agreed to drop its insistence that the Lokpal should include members of the judiciary in its ambit, on the condition that Parliament adopt a stronger Judicial Standards and Accountability Bill than the one that was referred to the Standing Committee. The Jan Lokpal Bill’s inclusion of the judiciary under the purview of the Lokpal did not go down well with other civil society groups, which are concerned about the threat to judicial independence from an all-powerful Lokpal.

Source: http://www.frontline.in/stories/20110923281901200.htm

Why all in one?

Posted in ANNA HAZARE CAMPAIGN, CONSTITUTION, CORRUPTION, DEMOCRACY, JAN LOKPAL by NNLRJ INDIA on September 6, 2011
Parliament building in New Delhi (Sansad Bhava...

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USHA RAMANATHAN IN THE FRONTLINE

Given the experience with extraordinary powers vested in any institution, the wisdom of having a super-powerful body must be debated.

IT is axiomatic that it is the state that has the exclusive power to make law. As is true of many axioms, this too reflects reality only in part; various groups do, in fact, influence lawmaking. The Disabilities Act, 1995; the Right to Information Act, 2005; and the National Rural Employment Guarantee Act (NREGA), 2005, are obvious examples. Yet, alongside this experience is the intransigence of the state, which the Lokpal debate has thrown into sharp focus.

The government’s Lokpal Bill, 2011, was introduced in the Lok Sabha on August 4, following tough talking and hard bargaining by five members of a civil society team. Yet, this Bill manages to remain status quoist even while ceding some ground. Its ‘Lokpal’ will be a chairperson with a maximum of eight other members, half of whom are to be judicial members. The pool from which it will draw its candidates is populated with sitting and retired judges of the Supreme Court and Chief Justices of High Courts. The appointment process, too, is more of the same.

The government is, by instinct and practice, loath to dilute its control over what it creates, and the Lokpal Bill too is witness to this. The chairperson or any other member is to be removed from office on the grounds of misbehaviour on a report from the Supreme Court, on the basis of an inquiry made by it. The Supreme Court may, however, act only when the reference has been made to it “by the President”, on a petition signed by at least a hundred Members of Parliament or, again, by the President, on a petition from a citizen where the President is satisfied that such reference should be made.

Acceding to the demands of the team of five, the Bill has accepted the formula of a separate investigation wing and a prosecution wing to be constituted by and under the control of the Lokpal. There is relative fiscal autonomy where the Lokpal is to prepare its budget each year, which is to be sent to the Central government “for information”.

The sticky issue of whether the Prime Minister should be subject to the Lokpal’s scrutiny has been answered by including him – “after he has demitted the office of the Prime Minister”. Ministers, MPs and high-ranking officials are within this law, but not the lower bureaucracy.

The inclusion of any person belonging to “any association of persons or trust (whether registered under any law for the time being in force or not) in receipt of any donation from the public” is being read as a way of getting back at a public that has placed the government in this difficult spot. The notable absence of corporations from the ambit of this Bill has drawn adverse comments, especially given the role corporations are to have had in so many recent scams.

Prosecution or disciplinary proceedings, the power of search or seizure, provisional attachment of assets, and the power to recommend transfer or suspension of a public servant who is connected with allegations of corruption are all in the Bill, as are provisions providing for declaration of assets and adverse inference where assets not declared are found in the possession of or in use by a public servant.

Perhaps the most striking deviation from extant law is the change in the nature of the ‘sanction’ power. The power of the executive to withhold sanction for prosecution has been a huge hurdle to holding the corrupt guilty. The government Bill hands over to the Lokpal the power to give or withhold sanction. The Jan Lokpal Bill, too, adopts this approach. Neither, however, acknowledges the changes that have been introduced in the Torture Bill, which, carefully, does not leave the power in anybody’s discretion. It, instead, requires that where the decision is not to allow prosecution, reasons have to be given, which may, then, be subject to judicial review. That places a check on arbitrary use of power by any agency. The formula in the two Bills relocates the discretion in the Lokpal but does not change the nature of that power to exercise discretion.

The presumption of ‘good faith’ – that everything done by a public servant shall be presumed to be done “in good faith or intended to be done in the discharge of official functions or in exercise of his powers” – has been retained.

Generally, then, the government Bill is more of the same with one significant change, some reluctant halfway measures, and much that has been left unconsidered.

The Jan Lokpal Bill has moved through many versions. In June, version 2.3 was made available on the website of India Against Corruption (IAC). Mildly put, this Bill is markedly at variance with the government Bill. This Bill envisages a Lokpal that would have “administrative, financial and functional independence from the government”. To achieve this, the Lokpal is to have its own investigating agency, which it will supervise, monitor and direct. It will appoint and dispense with the services of its investigators.

The arm of the Central Bureau of Investigation (CBI) that investigates corruption is to be excised from it and subsumed in the Lokpal. Some years ago, in an effort to give functional autonomy to the CBI from its political masters, the Supreme Court shifted control of the CBI to place it in the Central Vigilance Commission (CVC). The Jan Lokpal Bill works on the unreasoned belief that the Lokpal will not succumb to the temptations of such extensive control over the investigating agency.

Powers of the Lokpal

The powers of the Lokpal are elaborate and have been set out in two clauses in the Bill. They include the power to

“Appoint judicial officers, prosecutors and senior counsel.”

Initiate and monitor the progress of prosecution.

“Attach property and assets acquired by corrupt means and to confiscate them in certain cases.”

“Recommend cancellation or modification of a lease, licence, permission, contract or agreement if it was obtained by corrupt means, and to recommend blacklisting of a firm, company, contract or any other person involved in an act of corruption.” In this case, the public authority shall either comply with the recommendation or reject it within a month of receiving it. If rejected, the Lokpal “may approach the appropriate High Court seeking appropriate directions to be given to the public authority”.

“Ensure due compliance of its orders by imposing penalties on persons failing to comply with its orders.”

“Initiate suo motu appropriate action… on receipt of any information from any source about any corruption.”

Make recommendations to public authorities, in consultation with them, “to make changes in their work practices to reduce the scope of corruption and whistle-blower victimisation”, and the authority concerned is to send a compliance report within two months.

“Prepare a sentencing policy under the Prevention of Corruption Act and revis(e) it from time to time.” This is an extraordinary prescription by which parliamentary power to detail the policy of punishment is moved to the discretion of the Lokpal. The punishment for corruption can be set anywhere between six months and a life sentence.

“Prepare an appropriate reward scheme to encourage complaints from within and outside the government to report acts and evidence of corruption.”

Enquire into the statements of declaration of assets “filed by all successful candidates after any election to any seat in any House of Parliament”.

Punish a public servant with imprisonment up to six months or fine or both “if he fails to comply with its orders for ensuring the compliance”.

Assume competence to investigate any offence under any other law while investigating an offence under the Prevention of Corruption Act.

Interception and monitoring of various media of communication can be undertaken at the behest of the Lokpal – and a member of the core committee claimed recently that this was non-negotiable.

The breadth of the Lokpal’s interest includes within it complaints of corruption against the Prime Minister, Ministers and MPs, and the higher judiciary, and these shall be looked into by a bench of seven members if the Lokpal so decides. The Lokpal will, among its other functions, protect the whistle-blower and the Right to Information (RTI) activist; deal with grievances where there is a delay or non-performance in delivery of services; and ensure that its own staff does not practice corruption.

A complex appointment process and a complaints procedure by which anyone may complain to the Supreme Court, which will then inquire and decide whether a Lokpal is guilty as charged, are the bulwarks offered against excessive power corrupting the Lokpal.

The inadequacy of these protections has been raised and needs much discussion and reasoned debate.

A multiplicity of powers – to legislate, judge, punish and protect – are to be placed in this institution of the Lokpal. There are questions about constitutionality, separation of powers, checks and balances, and the consequence of absolute power waiting to be addressed in this Bill. It does, however, provide a useful counterpoint to the government Bill.

A postscript: although having the Lokayuktas in the Act is one of the demands, the Jan Lokpal Bill does not elaborate on this theme and stops with stating that “similar provisions for Lokayuktas… will have to be incorporated in the Bill”.

The National Campaign for People’s Right to Information (NCPRI) has proposed a “basket of measures” in place of an omnibus law that vests all the power, and responsibility, in a Lokpal. These largely draw upon Bills pending in Parliament and work at improving and strengthening them. These are the Judicial Standards and Accountability Bill, the Whistleblowers’ Bill, the Lokpal Bill and the toughening up of the Central Vigilance Commission Act, 2003. In addition, a National Grievance Redress Bill, 2011, has been drafted to cover the complaints that arise in the delivery of services.

The NCPRI position is that loading one institution with the work of dealing with corruption and inefficiency in the lower bureaucracy, protecting whistle-blowers and RTI activists, and confronting big-ticket corruption would make for an impossible agenda. As for the judiciary, the independence of the judiciary must be preserved, as must the separation of powers; and dealing with matters of standards and corruption in the judiciary would best be by a separate law. The NCPRI documents are offered as critiques and drafts meant to facilitate discussion.

Suggestions emanating from the Lok Satta and the Foundation for Democratic Reforms reflect on the proposals currently on the table and open the door for discussion. A Bahujan Lokpal Bill, 2011, sent to the Standing Committee brings into the debate the issue of representation in such a powerful body and the recognition of the diversion of funds and policy focus from the Scheduled Castes, for instance, to other purposes as happened during the Commonwealth Games.

Some of the changes that may be brought may need a constitutional amendment. Congress general secretary Rahul Gandhi made a suggestion in Parliament that the Lokpal may be made into a constitutional entity, a suggestion that has been seconded by former Chief Election Commissioner T.N. Seshan.

Given the experience with extraordinary power when vested in any institution, the wisdom of having such a super-powerful, insulated body awaits serious deliberation.

Usha Ramanathan is an independent law researcher working on the jurisprudence of law, poverty and rights.

http://www.frontline.in/stories/20110923281902400.htm

The Lokpal and the CBI

Posted in ACCOUNTABILITY, ANNA HAZARE CAMPAIGN, CORRUPTION, JAN LOKPAL by NNLRJ INDIA on September 5, 2011
JAN LOKPAL BILL

JAN LOKPAL BILL

R K RAGHAVAN IN THE HINDU

The ushering in of a Lokpal should in no way dilute the CBI’s legal authority or operational effectiveness.

It is a happy turn of events that there is, at last, a kind of truce between the Central government and the Anna Hazare Team on the Lokpal issue. Both sides have displayed a measure of maturity that augurs well for the future of public life in India. The stage is now set for some animated but objective discussion of the law that will concretise the idea of a strong ombudsman. It is not enough for the two sides to say that they are for a credible Lokpal. They need to go the extra length to accommodate each other’s sensitivities. Otherwise things will be back to square one. This is why a lot of importance should be attached to the meeting of the Parliamentary Standing Committee scheduled in the next few days.

The Anna Team’s focus is rightly on the status of the Central Bureau of Investigation (CBI) in the future scheme of things. With all its faults — some real and many imaginary — the CBI is still the best bet to strike at the venality that marks public life in India.

To say that politicians alone are guilty of corruption, an impression given by the Anna Team, is greatly skewed. Civil service misdeeds are equally enormous and cannot be ignored. Take, for instance, the recent arrest of a senior Income Tax Department official who allegedly demanded a sum of Rs.50 lakh to overlook the suppression of unaccounted income by a company. Instances are legion of top officials of enforcement agencies asking for a bribe without any sense of shame or fear. The magnitude of corruption in the Central government departments is mind-boggling, and this is why we first need an effective anti-graft machinery at the Centre, rather than in the States. The corruption in the States could be tackled subsequently. If the Lokpal is unable to cut at the roots of the civil servant-politician nexus in promoting dishonesty, it would have hardly justified its creation.

The ushering in of a Lokpal should in no way dilute the CBI’s legal authority or its operational effectiveness. This should be the starting point for any discussions of the Standing Committee. A former Union Minister, referring to the plea for total autonomy for the CBI from the Executive, asked this writer some time ago as to who exactly the organisation should be answerable to if it wants to be autonomous — particularly when monitoring of all CBI cases by the judiciary was impractical. This query by an otherwise well-meaning public figure summarises the political perspective of the whole issue of the CBI’s autonomy. It reveals the unconcealed desire of the average politician to somehow retain at least a semblance of control over the CBI.

It is generally known that the senior bureaucracy is also not exactly unhappy with the current state of affairs wherein the CBI is under the thumb of the Department of Personnel. Perhaps the most significant move that came in 2003 was the insertion of Section 6A in the Delhi Special Police Establishment (DSPE) Act, 1946, making it mandatory for the CBI to get prior government permission before it can even proceed with a preliminary enquiry (PE) against an official of and above the rank of Joint Secretary. This was a dubious amendment to the Act, based on the specious ground of saving civil servants from needless harassment by the CBI. But it amounted to deliberate emasculation of an organisation that requires teeth to tackle public servant corruption. The provision has been questioned in judicial forums as violative of the fundamental right of citizens to equality before law. Let us hope that this issue is resolved soon in favour of maintaining the integrity of the public services.

It is against this backdrop that the Anna Team’s demand to bifurcate the CBI, attaching its anti-corruption wing with the proposed Lokpal machinery, should be examined. This is ostensibly in order to remove the organisation from the clutches of the Executive. The rationale is unexceptionable. The practicality of the proposed arrangement is, however, highly debatable.

The CBI does not operate with any watertight compartmentalisation of its numerous wings. No doubt there is a distinct Anti-Corruption Wing functioning at its headquarters. In the field units the distinction is, however, blurred. There is a pooling of resources at all levels when a major case, invariably a sensational conventional crime, is investigated by the CBI at the request of a State government or on the orders of a court. This will no longer be possible if a large chunk of the CBI representing the anti-corruption staff is removed and tagged on to the Lokpal. The current top brass of the organisation are reportedly opposed to such an arrangement, which would deny them the substantial manpower needed for non-anti-corruption work. The CBI’s resources are already quite slender, making it difficult to cope with the nearly 1,000 cases registered by it each year and about 7,000 cases that are on trial.

Following the Vineet Narain judgment (1997) by the Supreme Court, the superintendence of the CBI’s anti-corruption work is with the Central Vigilance Commission (CVC). This is a nominal arrangement which has worked reasonably well, because we have had some non-interfering and mature Central Vigilance Commissioners, and an equally responsible and self-effacing CBI leadership. Under an aggressive and egoistic CVC this arrangement could have become untenable. If, however, you want to disturb this stable state of affairs with a view to yielding to the demand of the Anna Team, the whole process of transition will have to be carefully conceived and worked out.

As one who has headed the CBI, I am totally against any dismemberment of the organisation. That would cause more harm than good to the objective of rooting out corruption. If the Lokpal becomes a reality, the most sensible thing to do would be to transfer the existing authority of superintendence of the CBI from the CVC to the Lokpal. Any other arrangement would result in the creation of two separate investigating agencies, namely, the CBI, and the small unit envisaged for the Lokpal. That would lead to confusion and a clash of functions. Along with such empowerment, the Lokpal could be conferred the authority (that currently vests with the government) to sanction the prosecution of public servants. This can be done by suitably amending Section 197 of the Criminal Procedure Code, 1973 and Section 19 of the Prevention of Corruption Act, 1988. The power enjoyed by the government under Sections 377 and 378 of the CrPC to deny or accord permission to the CBI to go on appeal or prefer a revision petition against the orders of lower courts could also be vested in the Lokpal. It should be remembered that we have been witness to totally political decisions in such matters. Finally, the entire budget allocation for the CBI could be placed at the hands of the Lokpal, so that the CBI enjoys freedom from any tendentious holding up by government of sanctions of money required for its day-to-day running and implementing its long-term projects.

All these suggested moves may be viewed as being too drastic. But, then, without them the CBI will remain tied to the apron strings of the Executive. The former Chief Justice of India, J.S. Verma, must be a disappointed man. His bold judgment in the Vineet Narain case was aimed at insulating the CBI totally from political caprice. If, however, in the public perception this has not materialised, both the organisation’s leadership and the executive will have to bear the cross.

The opportunity that is currently available to improve the image of the CBI through a thoughtful fusing of the agency with the Lokpal should not be frittered away. A lot of magnanimity on the part of the current Executive is called for. At the same time, the role of the media and the citizenry at large in bringing enough pressure for a reform of the system can hardly be overemphasised.

(Dr. R.K. Raghavan is a former director of the Central Bureau of Investigation.)

http://www.thehindu.com/opinion/lead/article2424159.ece

LOK PAL CAMPAIGN: For a strong and effective Lokpal

Posted in JAN LOKPAL by NNLRJ INDIA on August 25, 2011
PRAKASH KARAT

PRAKASH KARAT

By PRAKASH KARAT IN THE HINDU

The Anna Hazare fast has seen an outpouring of support across the country. The government Lokpal Bill is unacceptable. A fresh Bill is needed for an effective Lokpal. There has been an outpouring of support all over the country in favour of the fast conducted by Anna Hazare for the Jan Lokpal Bill. The agitation has found support predominantly from the urban middle classes and a substantial section of youth belonging to the strata. There is no doubt that since the first hunger strike launched by Anna Hazare in April, the anti-corruption movement has gained momentum.

The attitude of the United Progressive Alliance government and its failure to tackle corruption, have fuelled widespread anger. First, the government is seen as being complicit in corruption. This has been the most corrupt government in the history of independent India. The paradox of a “clean” Prime Minister heading such a government has sunk into the consciousness of the urban middle classes.

The manner in which Ministers in the government defended the corrupt practices indulged in as a part of the 2G spectrum allocation, stating that there was zero loss of revenue for the government, confirmed the fears of many people that this government, steeped in corruption as it is, cannot take any meaningful action on this front. In all the cases – whether it be those related to the allocation of 2G spectrum or the conduct of the Commonwealth Games – agencies independent of the government, that is, the Supreme Court of India or, the Comptroller and Auditor General, were the ones that spurred the Central Bureau of Investigation into action to investigate and prosecute the guilty.

The problem has been compounded by the government’s act of introducing a Lokpal Bill that is weak and ineffective. The Prime Minister is excluded from the purview of the Lokpal. The method of appointment of the Lokpal will not make it an independent authority. A Lokpal set up under the provisions of this Bill would be unable to act independently. There are no provisions for the Lokpal to act against corporates and business enterprises that indulge in corrupt practices in relation to the government.

Secondly, the UPA government and the Congress leadership were in the dock for the manner in which Anna Hazare and his colleagues were arrested on the morning of August 16, even before the hunger strike was launched. The irony of a corrupt government putting an anti-corruption crusader in Tihar jail was not lost on the people. The brazen attack on the democratic rights of citizens to protest peacefully, isolated the government among the people and inside Parliament.

The ruling party decried the Hazare-led movement as an attack on Parliament and democratic institutions. Its leaders claimed that since the government has introduced a Bill in Parliament, any agitation against it is an attack on Parliament. This is specious reasoning. Political parties and citizens’ organisations have the right to oppose and agitate against any bill introduced in Parliament. The Left parties and the trade unions have opposed many bills which were anti-working class, and organised protest actions and struggles against them. Strikes have taken place against proposed legislation that seeks to liberalise the financial sector in the areas of insurance and banking.

Even the Congress opposed the Prevention of Terrorism Bill that was introduced in Parliament in 2002 by the Bharatiya Janata Party-led government. The Congress continued to oppose the legislation even after its enactment, and demanded its withdrawal.

Corruption has become a major issue and people are increasingly becoming conscious and determined to fight it. But there is need for a proper understanding of the causes for the rampant corruption that has affected all spheres of public life. The Communist Party of India (Marxist) has set out its understanding of the present malaise of corruption, the causes and the effects.

In the last two decades, with the advent of liberalisation and the neo-liberal policies, high-level corruption has become institutionalised. The neo-liberal regime has led to an exponential rise in corruption. Much of this corruption stems from the big business-ruling politician-bureaucratic nexus which has been established.

We have seen how, in the seven years of the UPA government and the earlier six years of the NDA government, policy-making has been suborned to serve the interests of big business; how privatisation and the loot of natural resources are facilitated by this nexus in operation; how the UPA government has pandered to big business – Indian and foreign – by putting in place policies and mechanisms to facilitate the transfer of resources such as land, minerals, natural gas and so on to business barons. The neo-liberal regime has affected the political system with big capital holding sway. Increasingly, politics is being converted into a business, and business is conducted through politics.

The fight against high-level corruption, therefore, requires a multi-pronged effort. There has to be an effective Lokpal authority; there has to be electoral reforms to curb money power for politics; there has to be a distinct mechanism to curb corruption in the higher judiciary through separate legislation; there has to be firm measures to unearth black money and crack down on those who have stashed away illegal money abroad in tax havens. Above all, the features of the neo-liberal regime, which encourage accumulation of capital through corrupt means and facilitate the loot of natural resources by big business, should be ended.

The main source of support for the Hazare-led movement is the urban middle class. Many of them were supporters of the liberalisation policies and the reforms ushered in by the Manmohan Singh government. Now plagued by corruption, they want a messiah to get rid of the corruption that constantly affects their daily life. They would like corruption to end, while maintaining the economic regime that has conferred certain benefits on them. Hence they are unable to see the organic link between the neo-liberal policies and the corruption that has been engendered.

The middle class propensity to be anti-political, to blame all politicians and to hold Parliament in contempt, are all on display in the Anna Hazare movement. The constant harping against all political parties and the setting of unilateral deadlines for Parliament to act have raised apprehensions about their intent and commitment to democratic values. This has only detracted from the rightness of the cause and the popular support it has evoked.

There is legitimate anger against the plutocracy that has come to dominate the political system. But this plutocracy and the corrupt nexus cannot be fought by targeting political parties and concentrating fire only on the petty corruption that citizens face in their daily lives. Given the amorphous nature of the movement that has gathered around Anna Hazare, the right-wing forces, including the corporate media, seek to support and direct the movement away from the focus on the fountainhead of corruption. There is a constant masking of the real causes of corruption in society. In a poll conducted by the Centre for the Study of Developing Societies, published recently in The Hindu, to a question ‘who is the most corrupt,’ 32 per cent of those surveyed said government employees were the most corrupt; 43 per cent said elected representatives were the most corrupt; and only 3 per cent thought businessmen and industrialists were the most corrupt. This is the dominant opinion among the middle classes.

In every major corruption scandal in the recent period, there was big business or corporates involved in the act of corrupting public servants – whether they were Ministers or civil servants. In the irregularities involved in the 2G spectrum allocation, the Commonwealth Games and the Krishna-Godavari basin gas contract, the hidden hand of big business exists. The government’s Lokpal Bill does not address this issue at all. The Jan Lokpal bill at least has clauses providing for the cancellation of contracts, and imposition of penalties on business found to have been illegally obtained by them. But the thrust of the anti-corruption movement, by and large, misses this main factor.

While a set of measures has to be taken to tackle the problem of corruption, right now the issue is the setting up of a strong Lokpal authority. The government’s Lokpal Bill has been rejected by large sections of the people; and it is not acceptable to most of the Opposition parties. In such a situation, the government should retract from its stand.

After eight days of the fast by Anna Hazare, the government has bowed down to public pressure and initiated talks with the representatives of the Hazare group. This is a welcome development. Hopefully, this will lead to a fresh or modified bill that can pave the way for an effective Lokpal.

(Prakash Karat is the general secretary of the Communist Party of India – Marxist.)

Source: http://www.thehindu.com/opinion/lead/article2393469.ece?homepage=true

A cruel joke on the nation

Posted in ACCOUNTABILITY, CONSTITUTION, CORRUPTION, DEMOCRACY, FUNDAMENTAL RIGHTS, GOVERNANCE, JAN LOKPAL by NNLRJ INDIA on July 30, 2011
JAN LOK PAL

JAN LOK PAL COMMITTEE MEMEBERS

PRASHANT BHUSHAN SR. ADVOCATE  IN THE HINDU

All that the government’s Lokpal bill would do is to create an illusion that it has acceded to the public demand for an independent anti-corruption agency.

The Union Cabinet announced on July 28 that in order to honour the commitment it had given to Anna Hazare and the nation at large, it would table a Lokpal bill during the monsoon session of Parliament beginning on August 1. Though the exact contents of the bill as approved by the Cabinet is not known, its basic features as announced by various Ministers show that such a Lokpal as envisaged in the government’s bill will not be able to tackle any significant case of corruption and will in fact be a cruel joke on the nation.

Looking at the major scams that have erupted in recent times, we find that the government’s Lokpal, apart from being sarkari in the sense that it will be selected by a committee dominated by people from the government, would not be able to investigate them. Thus, it would not be able to investigate the Commonwealth Games scam, the Bellary mining scam or the Adarsh Society scam, since it would have no jurisdiction over State government officials. Similarly, it would not be able to investigate the Public Distribution System scam or the scams in the National Rural Employment Guarantee Scheme, because it would have no jurisdiction over officials below Group A. For the same reason it would not be able to take up any of the corruption cases that plague the common people. It would not even be able to investigate the cash-for-votes scam, since that involves the acts of MPs in Parliament. It would also not be able to properly investigate the 2G spectrum scam, since it cannot call for papers from the Prime Minister’s Office, which are relevant for a proper investigation.

Quite apart from the severely restricted nature of the sarkari Lokpal’s mandate, the distinction drawn by the government’s bill between the level of the officers to be investigated (with lower-level officials to be investigated by the Central Bureau of Investigation (CBI) that is under the government, and higher-level officials by the Lokpal) would create enormous confusion about jurisdiction. Since one often does not know in advance the level of the officers who may be involved in a scam, and usually officials of all levels are involved, one would not know whether to lodge the complaint with the government’s CBI or the sarkari Lokpal. If the CBI started an investigation into the Public Distribution System scam on the basis of the assumption that it involved junior officials, and then found that the money trail goes right up to the top, would the investigation then be transferred to the Lokpal? That would lead to duplication of investigation, apart from the very real possibility of the CBI having already ruined the investigation. That is why different investigative agencies are not designated to investigate offences depending on the identity of the culprits. Thus, normally there is one agency to investigate offences under the Prevention of Corruption Act irrespective of the status of the person involved. There may be a different agency to investigate separate offences under other laws, such as the Enforcement Directorate for offences under the Foreign Exchange Management Act, or the Income Tax Department for offences coming under the Income Tax Act. And will we allow corruption by junior officials to be dealt with by the same agencies that are today sleeping over it?

On UNCAC lines

The Jan Lokpal bill had been framed on the lines suggested by the U.N. Convention Against Corruption (UNCAC), which requires all countries to establish independent anti-corruption agencies which would have the jurisdiction to investigate all public officials. The civil society group has therefore tried to set up a comprehensive, independent, empowered but fully accountable Jan Lokpal which would have an adequate investigative machinery under its control (the anti-corruption wing of the CBI to begin with, which would be brought under the administrative and supervisory control of the Jan Lokpal) and would be able to investigate all Central public servants for corruption. The Jan Lokpal bill also provided for Lokayuktas in the States that would be similarly empowered to investigate State public servants. Moreover, the Jan Lokpal would be selected by a broad-based selection committee that would be largely independent of the government, to avoid the kind of farce that has been witnessed in the selection of the Central Vigilance Commissioner (CVC).

What we have in the government’s bill is an agency that would be essentially selected by the government (five of the nine members of the selection committee would be government nominees), would have jurisdiction over less than half a per cent of the public servants, and would be additionally crippled by the fact of not being able to investigate the Prime Minister, judges or MPs for corruption connected with their acts in Parliament. They say that nine members of the Lokpal cannot handle complaints against 40 lakh Central public servants. But that would be done by the investigating machinery supervised by the Lokpal. It has been estimated that on a ratio of one Lokpal official for every 200 public servants, the Lokpal would have a total of about 20,000 officials working under it. That is a medium-sized department. The Delhi Police alone has 80,000 officials.

On the Prime Minister, judiciary

Some of the provisions of the government’s proposal, such as granting immunity from investigation to the Prime Minister, show illiteracy about the basic features of the Constitution. In 1975, a Constitution Bench of the Supreme Court unanimously struck down the Constitution (39th Amendment) Act that sought to put the election of the Prime Minister above challenge, on the ground that such a provision would violate the basic structure of the Constitution. A provision to grant immunity from investigation and prosecution to the Prime Minister would similarly fall foul of several basic features of the Constitution. In no civilised country is the head of the government immune from corruption investigation. Even in India he or she has not been immune. The CBI can, and occasionally under court directions has, investigated the Prime Minister (as in the case involving some leaders of the Jharkhand Mukti Morcha). The problem is that the CBI is under the Prime Minister himself and therefore cannot conduct a credible investigation of the Prime Minister. That was the entire rationale for an independent Lokpal — to free the agency investigating corruption from the administrative control of the very people that it may seek to investigate. This is precisely what the UNCAC requires.

Similarly, the rationale for the government’s proposal to remove the judiciary from the Lokpal’s ambit suffers also from conceptual confusion. They say that bringing the judiciary within the investigative ambit of the Lokpal would compromise the independence of the judiciary. The judiciary needs to be independent of the government. Normally the police or the CBI can investigate judges for corruption. However, the Supreme Court in Veeraswami’s case directed that since the police are under the government, which can be used by the government to harass judges by way of investigation, the prior written permission of the Chief Justice of India would be required for such investigation. This, despite the fact there had been no instance of any judge being harassed in such a manner, since the judiciary can always use its power of judicial review to quash any mala fide investigation.

However, if the investigation of judges would be done by a Lokpal that would be independent of the government (with the further safeguard in the Jan Lokpal bill that a bench of seven members of the Lokpal would grant permission for investigation or prosecution of judges), the whole rationale for the permission of the Chief Justice disappears. We have seen that in the past such permissions have often been denied even in deserving cases for reasons of conflict of interest. Yet the government’s bill seeks to exempt judicial corruption from being investigated by an independent Lokpal, and seeks to retain the present system of investigation by a government-controlled agency after obtaining permission from the Chief Justice of India.

India is today plagued by corruption of such enormous breadth and depth and running across all public authorities that it is now at serious risk of becoming a banana republic and a mafia state. It was in recognition of this alarming reality, demanding a comprehensive, independent, empowered though accountable anti-corruption authority, that Anna Hazare went on an indefinite fast on April 5, 2011.

After seeing the extent of public support for this demand, the government agreed to a joint drafting committee for the Lokpal bill. Refusing to meet most of the demands of the civil society group in the Jan Lokpal bill, the government has now come out with its bill, which will not succeed in tackling even one per cent of India’s corruption.

All that the bill will do is to create an illusion that the government has acceded to the public demand for an independent anti-corruption agency. But the government will have to pay a heavy price for again having underestimated the ability of the people to see through such a charade. The long suffering people have had enough. Come August 16, they will get a glimpse of public anger.

(Prashant Bhushan is a Senior Advocate and member of the civil society team that drafted the Jan Lokpal Bill.)

http://www.thehindu.com/opinion/op-ed/article2306020.ece

Make CBI transparent

Posted in CORRUPTION, GOVERNANCE, RTI by NNLRJ INDIA on July 4, 2011
Central Bureau of Investigation

Image via Wikipedia

The only explanation for the government’s decision to exempt the CBI from the ambit of the Right to Information Act is that the agency would not like to be accountable for its extra-Constitutional or discretionary activities.

B. R. Lall IN THE TRIBUNE

The Union Government’s decision to place the Central Bureau of Investigation (CBI) outside the ambit of the Right to Information Act has come under sharp criticism. They do not seem misplaced either.

However, bonafide protection in the field of investigation already exists under section 8 (h) of the Right to Information Act that provides “….there shall be no obligation to give any citizen information which would impede the process of investigation or apprehension or prosecution of offenders…” That applies not only to CBI or other central investigating agencies, but also to similar agencies of all the state governments as well.

The decision to exempt the CBI from the RTI Act is sought to be justified on the grounds of national security and possible impact on intelligence gathering. It must be made clear in no uncertain terms that the CBI is neither an intelligence gathering agency nor a security organisation. It is an investigative agency assigned legally the job of exposing rather than concealing.

By the very nature of its work, the CBI has to be an open organisation notwithstanding the sensitive cases that it may be dealing with. The sensitivity in the context of the CBI is when it deals with cases against the high and the mighty “…in the investigations of which one was expected to conceal more and expose less…” It is precisely for this requirement on the ground, as against the legal or operational requirement of the CBI, that such secrecy is needed.

Functionally, as against an intelligence organisation that requires total protection from transparency, investigations actually require complete transparency after a certain stage. It is only the premature disclosure of information during the investigation that usually gives undue advantage to the accused, who may cover his tracks, destroy the evidence and scuttle the investigation.

Transparent investigation

But once the charge sheet has been filed, there is no requirement for any further protection. Incidentally, all the evidence to be relied upon is communicated to the accused person so that he may prepare his defence. Once it is filed in the court of law, the charge sheet also becomes a public document.

Some of the information collected during investigations and contained in the case diaries of the agencies may not be shown in the charge sheet as that may be related to the security of the witness or of the accused and, therefore, not advisable to be brought in the public domain. Such information and documents, on which the prosecution does not rely, are already protected under the Criminal Procedure Code and the Evidence Act.

However, to meet with the ends of justice and to ensure that nothing is held back, the court trying the case has a right to look into all these documents and to use them as per its discretion.

The prevalent laws are quite adequate. Further secrecy, particularly for the CBI in corruption cases, is designed only to protect the people in high places. As such there is no necessity for any further privilege for any investigating agency in the country under the Right to Information Act. As a former CBI officer having fought the corrupt system from inside the government, I concluded that the CBI under the control of the government has to conceal more than reveal, against its lawful role of collection of facts truthfully and impartially without any fear or favour.

The exemption given to the CBI is an extremely retrograde step; it is going backwards and is completely undesirable and redundant. This will only encourage criminality and corruption in the government and may not leave even the CBI untouched as more you keep things under wraps, the more liable the process is likely to be misused by everyone.

Tradition to protect the powerful

This will only create another class of privileged people who would be beyond the operation of laws. Coming to the experience of other countries, such kind of protection has never been given to any agency in those countries that boast of the Rule of Law or uphold Human Rights.

Are we going to negate the rule of law that our constitution enshrines? In India, however, such steps by the governments to protect the high and mighty have been fairly common.

I am tempted to cite two instances. First, the directive that was issued in the eighties to protect politicians and officers beyond the rank of Joint Secretary against any inquiry or investigation. The direction was quashed by the Supreme Court as discriminatory and illegal in the famous Jain Hawala case in December 1997. But lo and behold, in 1998 itself it was placed back on the statute book through an ordinance and later enacted into the CVC Act in 2003. ( Significantly, the NDA government was in power in both 1998 and 2003)

The other instance is an investigation abroad that was to be conducted against a highly placed accused. That required a Letter Rogatory from the Indian Court to the court of the country where the investigations were intended to be conducted.

Under section 166 of the Criminal Procedure Code, any officer in charge of a police station can apply for such a letter. In 1993, a VVIP was to be protected, so the government modified the procedures by an executive order that the CBI should apply to the court for the LR only after obtaining permission from the government, thereby the possibilities of investigation abroad against any influential person were virtually closed, as the government could deny and did deny such permission indefinitely.

Requests were made to the government in this case for issue of LR in May 1993, but the Government of India did not give the permission till December 1996, when this writer left the CBI. ( It was of course the Congress which was in the saddle in 1993 )

So, there could be no investigations abroad, though the VVIP was accused of receiving kickbacks, keeping huge balances in banks abroad and acquiring a number of firms, in India and abroad. So much so, that power to apply for letter rogatory, vested in the SHO under the Code of Criminal Procedure, was withdrawn from the CBI and concentrated in Government of India and that too in the PMO (as was informally learnt), leaving nothing to chance.

Though the papers were pending with the Union Government for years but still this fact could not be made public by the CBI, as that would have amounted to censuring the Government, which the CBI under the control of the government itself could not afford.

The writer is a retired DGP of Haryana and former Joint Director, CBI

What is there to hide?

Maja Daruwala & Venkatesh Nayak IN THE TRIBUNE

It is hard to understand why an agency concerned with investigating corruption should be exempted from the RTI Act. But the government has done just that: and done it against the protests of the strongest voices including people like a former Chief Information Commissioner.

The exemption is particularly disturbing because it signals the ability and the inexorable desire of the government to slowly but steadily nibble away at people’s right to know. Detractors can be forgiven for feeling that the exemption from disclosing information about its functioning now offers the government a fine convenience to protect ‘its own’: bureaucrats in high places, opponents inside and outside; disgruntled business rivals who would probe why another is the favourite of the day; politically useful friends whose messes embarrass the government all the time; the biased investigations that wax and wane in vigour.

With graft gnawing at the edifice of governance, squirreling away the CBI from the public eye adds one more excellent tool to the cause of the corrupt. It will join the already handsome protections provided to the bureaucracy through the law that say, you cannot even begin an investigation against senior officers without specific permissions, let alone prosecute them for corruption. This is in line with the protections that the seniors in the judiciary have built in for themselves. Even an FIR cannot be filed against a High Court or Supreme Court judge accused of corruption, without the sanction of the Chief Justice of India.

The CBI is a most powerful hound in the kennels of whoever has the lease of the house for the moment. So it is unlikely that the Opposition will create any great furore in defence of openness beyond making the right noises. More likely it will satisfy the obsession to always criticise every move of the government with a drizzle of tepid criticism on the mountain already being heaped on government because of its handling of the Anna-Ramdev affair.

There is no doubt that this latest attack on RTI is intended to stem the deluge of dirt that is gushing out as the public wants to know who has dirty hands, and want to be governed by only those with clean ones. But with corruption being now such a complex cloth of connections, revelations tumbling out one after the other about powerful individuals are likely to threaten not only the government of the day but the whole edifice of governance. Perhaps this is exactly the catharsis that is needed but in all likelihood may never be allowed to happen. The chaos is too hard to even contemplate, let alone prepare for controlling it.

There is no rational argument for taking the CBI out from under the RTI Act. It is not an intelligence agency nor is it guarding national security like the armed forces. It is essentially an anti-corruption watch dog and prosecutor which has, over time, been subverted into a catch-all agency governed by whoever is ruling at the Centre.

Nothing in the RTI Act hampers its working. If a particular disclosure has the possibility of adversely affecting its investigations, it can simply fall back on one of the many exemptions that are readily available in the Act. But going through that process would mean that the refusal to disclose could be challenged before the Central Information Commission and the Bureau would have to give an account of itself; its actions, its reasons for secrecy and its progression of each case.

It is this accountability that it wants to avoid perhaps because it knows a lot of its discretionary actions will not stand up to scrutiny. A blanket ban for an agency like the CBI is so useful for hiding inconvenient truths. India’s national motto –satyameva jayate- goes for a toss when dark deeds are rewarded with opaque robes of impunity. By retracting its decision to insulate the CBI, the Centre might like to give itself a fig leaf of a chance at running a decently transparent government.

Maja Daruwala is Director and Venkatesh Nayak is Programme Coordinator of Commonwealth Human Rights Initiative, New Delhi

http://www.tribuneindia.com/2011/20110704/edit.htm#6

The corrupt are afraid

Posted in CONSTITUTION, CORRUPTION, JAN LOKPAL by NNLRJ INDIA on July 4, 2011

ARVIND KEJRIWAL &  KIRAN BEDI

It is being alleged that the jan lokpal will become a parallel government — since it would not come under the government — and will be a threat to parliamentary democracy. Both these assumptions are wrong. The government will remain powerful. The jan lokpal will only keep a check on it from becoming arbitrary, unjust and corrupt.

Several independent institutions such as the Supreme Court, the Comptroller and Auditor General (CAG), the Chief Election Commission (CEC), the Central Vigilance Commission (CVC), the National Human Rights Commission (NHRC) and the Chief Information Commission (CIC) already exist. Some of these institutions were created through law and some through the Constitution. Are they parallel governments or a threat to democracy? No. Similarly, the jan lokpal will be one such independent institution. Instead of being a threat to democracy, it will be a threat to the corrupt.

Another important question that is being asked is this: who would be the jan lokpal accountable to? To answer this, we must see who are the existing independent institutions accountable to. What can a citizen do if a judge, the CAG, CEC, CIC or CVC is corrupt? He can do nothing. In some cases, Parliament can impeach the wrongdoers. But despite strong and credible evidence of corruption in so many cases, no one has been impeached in the last 62 years.

Compare this with the level of accountability provided in the Jan Lokpal Bill. It will be directly accountable to the citizens, as per the drafted provisions, contrary to the one provided by the government’s bill. Under the people’s bill, an ordinary citizen can complain against a jan lokpal member to the Supreme Court. And if found guilty, the court can remove the member. The Supreme Court will also have the power to punish complainants who make frivolous or malicious complaints.

We are not aware of any other institution or authority in India that is directly accountable to the people. Unfortunately, the government has rejected this proposal. According to the government-drafted lokpal bill, the lokpal would be accountable to the government only. Only the government can approach the Supreme Court for his removal. This means that if any lokpal member becomes inconvenient for the government, it would move the Supreme Court for his removal. This will only erode the lokpal’s independence.

What if the jan lokpal staff becomes corrupt? We had suggested several measures to address this issue like complete transparency in the lokpal’s functioning, an independent complaints authority to receive complaints against the lokpal staff, time-bound investigation of complaints against the staff and their summary removal if found guilty, social audits, annual financial and performance audits by CAG, annual performance appraisal by a parliamentary committee. The government has rejected all these proposals, thus ensuring that there are very high chances of the government’s lokpal turning corrupt.

A corrupt lokpal will serve vested interests within the government. This is what the government has been doing with the Central Bureau of Investigation (CBI). Recently, the CBI has been taken out of the purview of the Right to Information (RTI) Act. These vested interests increased the scope of corruption within the CBI and also the possibilities of its misuse.

It is also being alleged that the jan lokpal is a ‘Frankenstein’s monster’. Barring powers to recommend dismissal of a corrupt officer, no other power has been suggested for the lokpal that is not already vested in the CBI. The lokpal would obviously need these powers if he has to do any worthwhile investigation. Vested interests want a weak and ineffective lokpal. We should demand a strong lokpal but with adequate checks and balances. In contrast, the government is offering us just the opposite.

Should a lokpal have the power to dismiss a corrupt officer? Our suggestion: after completion of investigations by the jan lokpal’s team, a three-member bench of the jan lokpal would hold open hearings and pass orders on whether or not to remove the officer. If dissatisfied, the officer could challenge that order in the high court. In contrast, the government’s bill proposes that the ministers should have the power to dismiss a corrupt officer. Experience shows that ministers are direct or indirect beneficiaries of corruption. Rather than punish the corrupt, they have been brazenly rewarded.

Recently, the CBI arrested a senior officer of the National Highways Authority of India with unaccounted cash but the concerned authority refused to permit the investigators to even register a case against the corrupt officer. Do we really think that such ministers would even order dismissal of corrupt officers? Even today, the ministers enjoy the powers to dismiss corrupt officers. But no senior officer has ever been dismissed in the last 62 years by any minister for corruption. The government’s bill proposes to maintain the status quo.

It is being alleged that if the lokpal has jurisdiction over the PM, judges, MPs and officers, it will become a superpower. This is  wrong. An income tax officer has powers to scrutinise the returns of the chief justice of India, the prime minister, the president, ministers and MPs. He even has powers to impose taxes and penalties on them. Does that mean that he will become a superpower? No. Likewise, an investigative officer in the lokpal would only — and only — investigate any allegation of corruption against these authorities. Unlike income tax officers, the lokpal would not have powers to impose any taxes or penalties also on any of these authorities. The lokpal would only do investigations and the courts will decide on the punishment.

When Anna Hazare sat on a fast for the lokpal bill, he received tremendous support from the people. The government hopes that its misinformation campaign will decrease his popularity. People should guard against such propaganda because it is only being done to protect vested interests and will hurt the general public.

Arvind Kejriwal is a social activist. Kiran Bedi is a social activist and a former police officer. Both are Magsaysay Award winners and members of the joint drafting committee of the Lokpal Bill. The concluding part of this article will appear on July 8. The views expressed by the authors are personal.

Lokpal bill and the Prime Minister

Posted in ACCOUNTABILITY, CONSTITUTION, CORRUPTION, JAN LOKPAL by NNLRJ INDIA on July 1, 2011
A cropped Manmohan Singh version of File:IBSA-...

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ANIL DIVAN IN THE HINDU

When the basic structure of the Constitution denies the Prime Minister immunity from prosecution, how could it be argued that the office should not be brought under the scrutiny of the Lokpal?

The Indian citizenry is up in arms against corruption at the highest levels of government. Anna Hazare‘s movement has caught the people’s imagination. The former President, A.P.J. Abdul Kalam, has pitched in and called upon the youth to start a mass movement against corruption under the banner “What can I give?” (The Hindu, June 27, 2011).

According to a CRISIL report (The Hindu, June 29, 2011), inflation has caused the Indian public to be squeezed to the extent of Rs. 2.3 lakh crores. According to the Comptroller and Auditor General of India (CAG), the estimate of loss to the exchequer owing to the 2G spectrum scam is Rs. 1.22 lakh crores. That corruption is a disease consuming the body politic is a fear expressed by dignitaries in India over many years. As far back as 1979, Justice V.R. Krishna Iyer observed in a judgment in his inimitable style: “Fearless investigation is a ‘sine qua non’ of exposure of delinquent ‘greats’ and if the investigative agencies tremble to probe or make public the felonies of high office, white-collar offenders in the peaks may be unruffled by the law. An independent investigative agency to be set in motion by any responsible citizen is a desideratum.”

Mark the words: fearless investigation by an independent investigative agency against delinquent ‘greats’. A good Lokpal bill has to be nothing less.

It is in this context that this article addresses the issue of whether the Prime Minister should be brought under the ambit of an Ombudsman (Lokpal) and be subject to its scrutiny. It is important to observe that in most of the Lokpal bills, including the 2010 government draft (except the 1985 version), the Prime Minister is within the ambit of the Lokpal.

The Constitution

Under the Indian Constitution there is no provision to give immunity to the Prime Minister, Chief Ministers or Ministers. Under Article 361, immunity from criminal proceedings is conferred on the President and the Governor (formerly the Rajpramukh) only “during his term of office.”

So what is the principle behind such immunity being given? The line is clearly drawn. Constitutional heads who do not directly exercise executive powers are given immunity as heads of state. Active politicians such as Ministers, who cannot remain aloof from the hurly-burly of electoral and party politics, ethical or unethical, honest or corrupt, are not given any immunity. They are subject to penal laws and criminal liability.

The basic structure of the Constitution clearly denies immunity to the Prime Minister.

Internal Emergency

During the period of the Internal Emergency (1975-77), Indira Gandhi enjoyed dictatorial powers. She detained without trial prominent Opposition leaders and was supported by a captive and rump Parliament.

The Constitution (Fortieth Amendment) Bill was moved in, and passed by, the Rajya Sabha in August 1975 and later it was to go before the Lok Sabha. The Bill was blacked out from the media and hence very few people knew about it. It never became law because it was not moved in the Lok Sabha.

The Bill sought to amend Article 361 by substituting sub-clause (2) thus: “(2) No criminal proceedings whatsoever, against or concerning a person who is or has been the President or the Prime Minister or the Governor of a State, shall lie in any court, or shall be instituted or continued in any court in respect of any act done by him, whether before he entered upon his office or during his term of office as President or Prime Minister or Governor of a State, as the case may be, and no process whatsoever including process for arrest or imprisonment shall issue from any court against such person in respect of any such act.”

The attempt to give life-time immunity from criminal proceedings for acts done during and even prior to assuming office, of the President, the Governor and additionally the Prime Minister, did not materialise.

Foreign jurisdictions

In Japan, Prime Minister Kakuei Tanaka (July 1972 to December 1974) was found guilty of bribery and sentenced. In Israel, Prime Minister Ehud Olmert was indicted in corruption scandals in August 2009. In Italy, Prime Minister Silvio Berlusconi enacted, through a pliant legislature, a law by which he shielded himself from prosecution. The Italian Constitutional Court recently invalidated crucial parts of that law, which may result in his trial being revived.

The following are some of the main arguments against bringing the Prime Minister under the Lokpal’s scrutiny. The first one runs thus: “The simple answer is, if the Prime Minister is covered under ordinary law (the Prevention of Corruption Act), you don’t need him covered under Lokpal.” This is a view that has been attributed to the former Chief Justice of India, J.S. Verma (Hindustan Times, June 27, 2011). Any misconduct by a Prime Minister can be investigated by the Central Bureau of Investigation: this view is that of Chief Minister Jayalalithaa (The Hindu, June 28, 2011). This objection concedes the principle that the Prime Minister is not immune from criminal liability and can be investigated, but argues and assumes that the Prevention of Corruption Act and the CBI present effective existing alternative procedures. Nothing could be farther from the truth and the ground realities.

What is the ground reality? First, the CBI, the premier anti-corruption investigative agency, is under the Department of Personnel and Training, which is controlled by the Prime Minister’s Office (PMO). Secondly, the career prospects of CBI officers and other personnel are dependent on the political executive, and all officers are subject to transfer except the Director. Thus, the investigative arm is controlled by the ‘political suspects’ themselves. Thirdly, the Single Directive, a secret administrative directive that was invalidated by the Supreme Court in the Jain hawala case in 1997 (Vineet Narain v. Union of India) has been legislatively revived. Consequently, under Section 6A of the Delhi Special Police Establishment Act, the CBI is disabled from starting an inquiry or investigation against Joint Secretary or higher level bureaucrats without the Central government’s prior approval. Therefore, the Prevention of Corruption Act is a non-starter against Ministers and high-level bureaucrats who may act in concert. It is imperative that the CBI’s anti-corruption wing be brought under the Lokpal and not under the PMO. This alone would meet the test of an independent and fearless investigative agency as enunciated by Justice Krishna Iyer.

Secondly, it is argued that if the Prime Minister is within its ambit, the Lokpal could be used by foreign powers to destabilise the government. Today, the checks on the executive government are the higher judiciary, which has actively intervened in the 2G spectrum scam and other scams; the CAG, whose reports against the functioning of the telecommunications sector triggered investigations into scams; the Election Commission headed by the Chief Election Commissioner, which conducted elections in West Bengal in the most efficient and orderly fashion. All these authorities could be undermined by a foreign power. Why should the Lokpal alone be the target of a foreign power? Why not the intelligence and defence services? Why not leaks from Cabinet Ministers and their offices — bugged or not?

Thirdly, it is argued that bringing the Prime Minister under the Lokpal’s scrutiny would mean a parallel government being put in place. This objection is disingenuous. Do the Supreme Court and the higher judiciary constitute a parallel government? Is the CAG a parallel government? Is the CEC a parallel government? Is the CBI a parallel government? The answer is clear. These constitute checks and restraints on the political executive and the administration so that public funds are not misappropriated and constitutional democracy and citizen rights are not subverted. The Lokpal will be under the Constitution and subject to judicial review, and it is imperative that the anti-corruption wing of the CBI be brought under the Lokpal. There is no question of any parallel government. The Lokpal will be only a check on the corrupt activities of the Executive. If all checks and balances are to be regarded as the marks of a parallel government and therefore abolished, it will be a recipe for dictatorship.

William Shakespeare wrote: “There is a tide in the affairs of men, which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life is bound in shallows and in miseries.” There is a tide in the affairs of this country and there is a great opportunity to promote good governance through a powerful and independent Ombudsman. India’s economic reforms, for which the Prime Minister deserves approbation, should not be derailed at the altar of scams and corruption. Will his leadership ride on the tide of fortune and take the country forward to greater heights?

(Anil Divan is a Senior Advocate, and president of the Bar Association of India. E-mail: abdsad@airtelmail.in)

http://www.thehindu.com/opinion/lead/article2148073.ece

Justice V.R. Krishna Iyer, former Judge of the Supreme Court, writes in the context of the article by Anil Divan headlined ‘Lokpal bill and the Prime Minister,’ published on July 1:

Lord Acton, the great British jurist, rightly said: “Power tends to corrupt and absolute power corrupts absolutely.” The Prime Minister is the custodian of the considerable state power. He has to be under public scrutiny.

Therefore I have clearly expressed the view that if power is to be subject to public investigation and scrutiny, he has to be within the ambit of the Lokpal Bill and cannot be exempted from it. Likewise, our judiciary is the watchdog of the Executive. People look up to the judges to ensure that the Executive does not misbehave. The judiciary must be accessible to every citizen who has a grievance against the robed brethren. When Parliament resorts to misconduct and violates the Constitution, people appeal to the judges for a remedy. In this view, the judges are sublime and must have control over the Executive and the parliamentary process. Both these instruments are under the Lokpal’s proposed jurisdiction. There is no case of exemption of these authorities. I am sorry that some high Chief Justices have expressed a different view. I disagree. The greatest menace before India today is that the judiciary itself is corrupt and no action is being taken. There must be a militant, active nationwide movement against corruption. A powerful instrument must be set up for this if the confidence of the people is to be preserved.

The judiciary and the Prime Minister shall be under the Lokpal. The Lokpal itself must be of the highest order and should be plural in number. The Prime Minister and the judiciary shall be like Caesar’s wife: above suspicion.

Is the government serious about dealing with corruption?

Posted in CONSTITUTION, CORRUPTION, JAN LOKPAL, LEGISLATIONS by NNLRJ INDIA on June 20, 2011

TEAM ANNA IN THE HINDU

The Lokpal is designed to be a comprehensive anti-corruption institution independent of the government, empowered to effectively investigate corruption of all public servants. But most of the critical elements in this vision have been rejected.

Union Ministers and the members of Lokpal Bill drafting committee P. Chidambaram, Kapil Sibal and Salman Khurshid address a press conference in New Delhi recently.

Union Ministers and the members of Lokpal Bill drafting committee P. Chidambaram, Kapil Sibal and Salman Khurshid address a press conference in New Delhi recently.

The latest draft report of the Comptroller and Auditor General of India (CAG) on hydrocarbon production sharing contracts and the transfer of oilfields to Reliance is only the latest of the mega scams to surface in the country. The breadth and depth of corruption in India is clear from the country’s plunging ranking in Transparency International‘s global corruption survey. Corruption has come to affect every citizen in the country. Bribes have to be paid for ration cards, passports, building permits, and for doing even normal business. Street vendors and rickshaw pullers are forced to pay bribes for exercising their fundamental rights. Villagers are forced to pay bribes for getting their wages under the Mahatma Gandhi National Rural Employment Guarantee Act (NREGA) or for any other entitlements in other schemes. High-level corruption is plundering the public exchequer, distorting government policies, and creating a criminal mafia, which has come to dominate all institutions of power. Low-level corruption is making life impossible for common citizens.

A major reason for this rampant, widespread corruption is the lack of an independent, empowered, and accountable anti-corruption institution that can be trusted to credibly investigate complaints of corruption and prosecute the guilty. The Central Bureau of Investigation (CBI) is controlled by the very people who are the fountainheads of this corruption and is required to seek the permission of the very people who need to be investigated and prosecuted. The Central Vigilance Commissioner of India (CVC) is selected by the Prime Minister, the Home Minister, and the Leader of Opposition, who have a vested interest in ensuring that weak bureaucrats get selected. Moreover, the CVC has only recommendatory powers and most of his or her recommendations are disregarded by the government, which wants to protect corrupt public servants. The courts take years to conclude trials and there is also considerable corruption in the judiciary because of the lack of accountability of the higher judiciary and the lack of an effective anti-corruption agency to investigate corruption within its ranks.

This is why we have been demanding the constitution of an independent Lokpal institution — which will be completely independent of the government, empowered to effectively investigate corruption of all public servants of the Central government, including the Prime Minister, the judiciary, etc. (with Lokayuktas in the States to investigate public servants of the State governments and local bodies), and accountable in multiple ways to ensure that any corruption in the Lokpal institution would be immediately investigated and action taken. This is exactly what is required by the United Nations Convention against Corruption (UNCAC), which has just been ratified by India after much delay.

In the Jan Lokpal Bill proposed by us, the 11-member Lokpal would be selected by a broad-based selection committee consisting of the Prime Minister, the Leader of Opposition, the Chief Election Commissioner of India (CEC), the CAG, two Judges of the Supreme Court, and two Chief Justices of the High Courts. The selection would be done transparently by first setting up a search committee consisting of retired CECs and CAGs who would first call for public nominations, then prepare a shortlist which would be put up on a website for public comments about the shortlisted candidates after which the selection committee would finally select the members.

This 11-member Lokpal would have a full investigative agency under its control through which it would get complaints investigated. If corruption is found after investigation, the corrupt public servant would be prosecuted in special courts within the judicial system. The Bill provides that the number of special courts to try corruption cases would be increased to ensure that trials are completed within a year. Proceedings for removal of the corrupt public servant would also be initiated by the Vigilance Department under the Lokpal, which would give a full opportunity for hearing to the public servant. The Lokpal’s final recommendation for penalty against the public servant would be binding on the government. This would ensure that the bosses of the corrupt public servants who are often complicit in their corruption cannot protect them, as is happening today.

The Lokpal would thus be a comprehensive anti-corruption institution independent of the government. The 11 members of the Lokpal would be accountable to the Supreme Court of India, which would examine complaints against them and order their removal. The investigative and vigilance machinery under the Lokpal would be accountable to independent complaints authorities created in each State, apart from to the Lokpal itself. Moreover, the Lokpal institution would be subject to a financial and performance audit by the CAG. Most importantly, the functioning of the Lokpal would be mandated to be transparent and the details of its investigations would be put up on its website. Also, the orders of the Lokpal would be subject to judicial review by the High Courts and the Supreme Court.

In the last two meetings of the Joint Drafting Committee (JDC), the Ministers representing the government rejected most of the critical elements in this vision of the Lokpal. They see the Lokpal as an essentially 11-member institution where all decisions would have to be taken by these members themselves. Instead of a comprehensive anti-corruption machinery, they see it as an institution to look at a few cases of high-level corruption. Even there, they do not want the Prime Minister, the higher judiciary, and the Members of Parliament who take bribes for voting or speaking in Parliament to be covered. Also, they want the Lokpal to be merely a recommendatory body like the CVC in matters relating to the removal of corrupt public servants.

They were neither willing to debate these issues publicly nor even willing to place the audio records of the meetings on a public website. They were also not prepared to debate these issues further between us. It has therefore been decided that the Ministers would prepare their own draft and we would prepare our draft of the Lokpal Bill, each of which would be placed before the Cabinet, which would decide which Bill would be placed before Parliament.

We are repeatedly being told that laws have to be made by the elected representatives of the people and civil society has no role to play. This view shows an arrogance of power. Those running the government have forgotten that they are merely the representatives of the people and they must run the government and make laws as per their wishes. Therefore, while deciding which Lokpal Bill to pass, they must find out what the people want and, if they have any doubt about that, they can have a referendum on the disputed issues.

The people of this country are fed up with the all-pervasive massive corruption in the country and are determined to have a strong and independent Lokpal. Any government or party that goes against the wishes of the people will do it at its own peril.

(This article by Team Anna was submitted to The Hindu by Prashant Bhushan, one of the members of Team Anna on the Joint Drafting Committee of the Jan Lokpal Bill.)

http://www.thehindu.com/opinion/lead/article2118287.ece?homepage=true

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