LAW RESOURCE INDIA

Democratic war

Posted in CONSTITUTION, CORRUPTION, CRIMINAL JUSTICE SYSTEM, GOVERNANCE, JAN LOKPAL, LEGISLATIONS by NNLRJ INDIA on May 15, 2011
Indian Parliament Building Delhi India

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The Lokpal must be an independent body accessible to every citizen on any matter of corruption affecting the purity of public life.

Justice V R Krishna Iyer in THE FRONTLINE

IT is well known that corruption is widely prevalent in India. Time and again, acts of corruption have been brought into the public domain. They violate human rights, undermine the rule of law, distort the development process and disempower the Indian state. While there are laws against corruption in India, there exists a wide gap between the law in the books and the law in practice. Therefore, a comprehensive law providing for forfeiture of illegally acquired property, in India and abroad, of public servants is the need of the hour. The Jan Lokpal should have independence in its functioning. It must have the power to inquire into, decide and forfeit illegally acquired property of public servants, their relatives, associates, name lenders, and so on. For discharging the onerous duties of the Lokpal under the said enactment, that office must be given wide powers, including the power to call even from Swiss banks details of funds deposited by public servants. Power should be conferred on it to attach and confiscate movable and immovable property even before a final decision is taken. There must also be a provision stating that all transfers of illegally acquired property shall be void if such transfer is effected after the issue of notice of forfeiture. The accused public servant should be burdened with the duty to prove that all the assets he possessed are legally acquired wealth.

The Lokpal should be headed by a former judge of the Supreme Court with impeccable integrity. There has to be a provision for appeal to the Supreme Court.

The Lokpal will be an independent body accessible to every citizen on any matter of corruption affecting the purity of public life and will act only according to its chaste conscience. The members of the Lokpal body can act without fear or favour or affection or ill will of anyone in India, be he ever so high. Its jurisdiction will extend to investigate the proceedings of the Prime Minister, the President or other public authority or public body functioning in a manner affecting public interest, public life or work. The Lokpal cannot be changed by the government and can be replaced only by resignation or a unanimous decision of Parliament, Prime Minister and President.

Such a body will be supreme in its operations and its guidance will extend over the executive, legislative and judicative wings of government. The Lokpal and other members of the body will be selected by an independent authority in India and they can be prosecuted or subject to any court’s jurisdiction only on a specific motion for that purpose in Parliament or the State Assemblies and approved by a two-thirds majority of each House. On the other hand, the Lokpal, acting on the basis of a majority, can quash any decision or order of any authority that is found delinquent after a full and fair inquiry.

India has seen many avatars of corruption – the Bofors scandal, the fodder scam, the 2G spectrum allocation scam, the swindle in the Commonwealth Games preparations, and so on. The people of the country strongly believe that toothless pieces of legislation made by legislatures are the reason why corrupt people go scot free. The people also seem to have lost belief in the judicial system, which has been able to bring to justice only a few of the corruption-accused and that too after a minimum of 10 years.

The people have realised that their elected representatives do not do any legislative work and have started pointing to acts of corruption through the strong media. The people’s struggle for independence from the British has now turned into a democratic war against corruption. How can one expect a Prime Minister who does not exercise his franchise to wipe the tears of the aam aadmi who is suffering on account of rampant corruption? Development is now seen to be synonymous with corruption. To make the legislature do its duty, the people, who believe in a system of good governance, have turned to weapons of non-violence, such as satyagraha. For development to happen, India first needs independence from corruption.

Power is tempered with accountability; sans investigation, power is tower. This principle has been accepted in the Bill now introduced. But the supreme functions vested in this new instrument must be free from state control. Or else it becomes another tool of torture in the hands of the executive – a remedy aggravating the malady.

Prashant Bhushan has made a sound critique of the Bill. The larger the power, the more responsible is the accountability, lest the instrument destroy democracy. Today, if the judiciary delivers an authoritarian judgment, there is none to correct it nor is it accountable to any agency or authority. This makes judges a body of dictators.

The appointment of judges and the critique and correction of their fiats are vital. What is provided on this behalf is insignificant. Besides, access to correct the blunders of this arbitrary body, to make its selection democratic and transparent and its performance subject to a democratic organ has not been given due consideration. Under the guise of control over judicial and other instruments, we cannot create a royalty above all. That is, the choice is between fascism and a self-created authoritarian Grand Jury. The verdict of the jury for misbehaviour of the judiciary and executive authority will make the whole system self-contained and democratic without totalitarian bias.

Judges are not jungle creatures but maintain standards of conduct. During the days when J.S. Verma was the Chief Justice of India, an informal code of conduct was evolved, which commanded the concurrence of the judges of the High Court and the Supreme Court. This code of conduct, to have a binding force, must be incorporated in the Constitution itself and made enforceable. Thus, the standards of conduct of judges abhor corruption, misuse of power or other oblique behaviour. They can be enforced by the Grand Jury. The delinquent conduct not only of the judiciary but of all public authorities must be dealt with by the Grand Jury.

This steering body with final authority must be selected by a commission for appointment and performance. No longer confined to the judiciary but including every instrument that enjoys public power, the Grand Jury will sit for a period of 10 years and can be removed for misconduct only by the paramount power of the two Houses of Parliament. These are matters that have to be refined by the draftsman and presented to Parliament. These are rough ideas and have to be debated by Parliament and approved with a two-thirds majority. The whole process is cumbersome, but when complicated problems face a nation, the process has to be complicated. Fiat Justitia Ruat Caelum (Let justice be done though the heavens fall).

 Two fundamentals

 Two fundamentals that make the Grand Jury itself accountable may be indicated briefly. Public power becomes a terror unless it is accountable to the nation and makes itself accessible to the littlest Indian who has a grievance of corruption or improper behaviour justifying an inquiry into the conduct of the judges implicated. In principle, access to every citizen and accountability to ‘We, the People of India’ is accepted in the Lokpal Bill. I have suggested the creation of a basic authority with supreme powers. If both Houses of Parliament, each with two-thirds majority, have the power to appoint and to dismiss, surely it will be a grand wonder of paramount power.

Modifications and refinements may be necessary in what I have said. A national debate may bring out flaws, and faults and failings may be disclosed and corrected at the final stage. Egregious errors cannot be avoided in advance. Only when the nation debates the issue latent errors will become patent.It is my conviction, as I have repeated several times, that an appointments commission should be set up with transparency and opportunity for the public to speak up. When this article gains national circulation, new thought will surface and correction may still be possible. A performance commission also may be necessary. Perhaps, it is good to remember Edmund Burke’s observations: “Among a people generally corrupt, liberty cannot long exist.”

The Grand Jury I envision will be a powerful body, itself accountable to the people through Parliament, and its processes will be transparent and progressive. Glasnost and Perestroika are principles that apply to all instruments where state power is vested. After all, the greater the power, the more dangerous is the abuse. It is a fact that the former Chief Justice of India has been accused of corruption, and yet the Prime Minister has kept silent. While I have demanded power in Parliament even against the Grand Jury, that is because “in all forms of government people is the legislator”.

The former Chief Justice of India with grave aspersions against him is silent and the Prime Minister and Parliament are keeping guilty silence. But an event of corruption has happened, upon which it is difficult to speak and impossible to be silent. Dear Prime Minister, still I hold you as a statesman and straightforward repository of power. Parliamentarians, remember your duty to the nation. Speak up against corruption. Silence is grave guilt where it is your duty to speak on the side of the nation.

Dear Prime Minister, I still have great hopes from you. Act now and make the judiciary a credible instrument beyond suspicion, beyond delinquency. Manmohan Singh, you are the guardian of democracy for the nonce. Therefore, I cite Swami Vivekananda to impress upon you the basics of democracy and godism: “Feel, my children, feel; feel for the poor, the ignorant, the downtrodden; feel till the heart stops and the brain reels and you think you will go mad…. I do not believe in a God, who cannot give me bread here, giving me eternal bliss in heaven!”

http://www.hinduonnet.com/fline/stories/20110520281004100.htm

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