Effective Lokpal not in sight

People determined to root out corruption

by Justice Rajindar Sachar (retd) IN THE TRIBUNE

AS expected, the government and Anna Hazare’s team have disagreed on vital points relating to the institution of Lokpal. The question of inclusion of Prime Minister within the ambit of the Lokpal is being falsely blown out of proportion by government apologists. The Prime Minister, though head of the government, is only the first among equals. In a democratic country, a political vacuum does not arise as the Cabinet has a collective responsibility. Also, our past experience does not show that all our Prime Ministers have been angels. Serious credible accusations have been made against them. The regret always was that in the absence of an independent mechanism like the Lokpal to enquire into these allegations, the ruling party was able to successfully scuttle any honest independent enquiry.

Prime Minister Manmohan Singh has in public consented to being included within the jurisdiction of the Lokpal as had his predecessor A.B. Vajpayee — the supposed concern of the ministers is puerile, being more loyal than the king.

The stand of ministers for the exclusion of Prime Minister is so incongruous when it is noted that the Standing Committee on Law and Justice, headed by Congress spokesperson Jayanthi Natarajan, has said that the Bill should cover Prime Minister also.

This cynicism is increased when we find that Mr Digvijy Singh, the self- proclaimed alter ego of Mr Rahul Gandhi, supports the Lokpal having jurisdiction over the Prime Minister — people are legitimately hoping that Mr Gandhi would also indicate his position on a matter which is causing such a division in society.

The suggestion to exclude the Prime Minister is sought to be justified by ministers by taking the puerile plea that the Prime Minister continues to be under the jurisdiction of the Prevention of Corruption Act. It is surprising that ministers are comfortable for the Prime Minister being prosecuted at the report of junior police officials but not at the instance of a high-powered body like the Lokpal. Is this not the unspoken premise that under the Corruption Act the CBI will have to get sanction from the government? But which subordinate will dare to sanction the Prime Minister’s prosecution? For heaven’s sake, do not play joke with the people and be reminded of what John Adams, one of the founding fathers of the US Constitution, said, “The people have a right, an inalienable, indisputable, indefeasible, divine right to that most dreaded and envied kind of knowledge — I mean, of the character and conduct of their rulers.”

Another laughable justification by ministers is that the exemption will not be applicable after the Prime Minister has remitted office — this is like locking the stable after the horses have run away. Incidentally, even the discredited toothless draft Lokpal Bill, 2010, included the Prime Minister and members of Parliament.

The inclusion of the higher judiciary consisting of judges of the Supreme Court within the purview of the Lokpal is undesirable. I am conscious of the shame that some in the higher judiciary have polluted the institution. I am only suggesting a separate National Judicial and Accountability Commission. Call it the Lokpal (Judicial) Commission with the same powers as the Lokpal. This will serve the purpose and still keep the distance between the executive and the judiciary as mandated by the Constitution.

The rhetoric of Mr Kapil Sibal challenging anyone to give an example that “which PM in office anywhere has been prosecuted in the world”, I am sorry at this ignorance. Possibly, this is due to Mr Sibal not being assisted by his usually competent juniors who were with him when he was appearing in courts. Now, possibly, he is being ill served by his public relations officer — otherwise he would have been told that the present Prime Minister of Italy is being prosecuted before a magistrate on charges of corruption, having mafia links and deviant sexual behaviour. In France, proceedings were started against the then President Chirac for misappropriation of public money. Also in Israel, a former President has been sentenced to imprisonment for his deviant sexual behaviour by a magistrate.

The near contempt of the masses protesting at the scourge of corruption is shown by Mr Sibal comparing Anna Hazare to “Pied Piper of Hamlin”. Mr Sibal cautiously did not complete the story because those who were said to have followed the Pied Piper were rats, and following the Piper they just drowned in the sea. I need not comment on such crude and insulting comparison of the masses who are waging a struggle against corruption.

The government’s spurious claim by purporting to project Parliament as the real sovereign is fallacious. Dicey, the British constitutional authority, says, “Electorate is, in fact, the sovereign of England and the conduct of the legislature… should be regulated by understandings of which the object is to secure the conformity of Parliament to the will of the nation.”

Another heresy put forth against the holding of protest meetings by people to force the government to pass worthwhile legislation is that it is undemocratic and the only resort people have is to try to persuade the legislators to pass a particular law, and if they do not agree, then they should try their chance during elections. This is sheer heresy and negated by the Supreme Court (1960) in Dr Lohia’s case, who was arrested for asking farmers not to pay the increase in canal water rates to the UP government.

Ordering the release of Dr Lohia, the court said, “We cannot accept the argument of the learned Advocate-General that instigation of a single individual not to pay tax or dues is a spark which may in the long run ignite a revolutionary movement destroying public order. We can only say that fundamental rights cannot be controlled on such hypothetical and imaginary considerations. It is said that in a democratic set-up there is no scope for agitational approach and that if a law is bad the only course is to get it modified by democratic process and that any instigation to break the law is in itself a disturbance of the public order. If this argument without obvious limitations be accepted, it would destroy the right to freedom of speech, which is the very foundation of democratic way of life.”

A restrained approach by the government alone can prevent a collision with the masses, who are determined to vigorously pursue their struggle for an effective Lokpal.

The writer is a former Chief Justice of the Delhi High Court.



Make CBI transparent

Central Bureau of Investigation

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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.


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


Socially beneficial tool turning into legal terrorism mechanism?


It is too early to say whether Dominique Strauss-Kahn was framed by a woman employee of a hotel. It cost him his job as IMF chief and cast a shadow on his ambition to become French president. After prosecutors developed doubts over veracity of the victim’s charges, Kahn got unconditional bail. Will the relief save his image, reputation and political prospects? It is difficult to say but, generally, allegations of sexual assault or exploitation against the rich, powerful and famous are taken to be true.

But the most equipped investigation, able prosecution and hawk-eyed judicial scrutiny sometimes fail to unravel the facts. Actor Shiney Ahuja, who probably would be finding similarities of his case with that of Strauss-Kahn, will agree. The Supreme Court faced an identical dilemma just last year, relating to dowry harassment cases under Section 498A of Indian Penal Code. “It is common knowledge that unfortunately, matrimonial litigation is rapidly increasing in our country… this clearly demonstrates discontent and unrest in the family life of a large number of people of society,” it said.

On the one hand, the law was the social legislation giving women protection against harassment at the hands of the husband and his relatives, who demand more and more dowry. The court was concerned with the rapid rise in such cases. But on the other hand, it was aware that “a large number of such complaints are not bona fide and are filed with oblique motive”.

It admitted, “To find out the truth is a herculean task in a majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth.”

The SC wanted a way out of the vicious cycle of litigation that mostly ruins innocent husbands and in-laws, who are falsely roped in, but seldom affects the real perpetrators who exploit loopholes in the system to escape the law.

The court was worried by the overkill of Section 498A. It did not want a socially beneficial legal framework to be turned into a mechanism of legal terrorism. It requested the Law Commission to examine the issue and suggest changes that could help create an ambience where the perpetrators could be adequately punished and at the same time, leave some room for negotiations to arrive at an amicable settlement. The commission invited suggestions from all quarters, including NRIs. And the overwhelming response was in favour of thorough investigations into the complaint of the wife under Section 498A before police arrested the husband and in-laws.

The commission is in the process of finalizing its decision which appears to be in favour of providing for a settlement clause between the victim and in-laws, which could be a welcome breather. However, it is against making the offence under Section 498A bailable.

Before any change is made in the law that was enacted to protect women from dowry harassment, it needs to be debated whether a woman’s complaint under Section 498A be thoroughly probed before effecting arrest of the husband and her in-laws.

Right now, once a Section 498A complaint is lodged, the police arrests the person named by the wife. The SC had said, “The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.”

The commission, before sending its recommendation to the government, must examine this aspect — what should be the protection to husbands and in-laws who have been framed in a complaint under Section 498A. But it must also not lose sight of the gruesome treatment meted out to women who fail to satisfy the greed of husbands and their in-laws.


The Copyright Amendment Bill 2010: on the death of books and the digital environment

WIPO emblem.

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The Copyright (Amendment) Bill 2010, approved by the Union Cabinet on December 24, 2009, and introduced in the Rajya Sabha on April 19, 2010, sparked great controversy for a number of reasons. First, in an unusual departure from the British legal tradition, inspired by French and German law, the Bill proposes guaranteed royalties for lyricists/composers for the commercial exploitation of their songs. Anticipating that these new rights will force producers to share 50 per cent of royalties with lyricists and composers, these proposals were simultaneously welcomed by the former and condemned by the film industry. Second, the Bill introduces the parallel importation of books in accordance with Article 6 of the Trade Related Intellectual Property Rights (TRIPS) Agreement — a provision intended to provide readers in developing countries with books at cheaper prices but which, ironically, in India has been heralded by publishers as the death of books or at least the death of Indian publishing.

Section 2(m) of the Copyright Act, 1957 defines the expression “infringing copy” as a reproduction of a literary work. The Bill proposes to add the following proviso: “provided that a copy of a work published in any country outside India with the permission of the author of the work and imported from that country into India shall not be deemed to be an infringing copy.” The impact of this proviso is as follows. Currently, an Indian publisher has to enter into a license agreement with the owner of the Indian copyright in a foreign work (usually the foreign publisher) which authorises him to publish the work in India. If the proviso is added to section 2(m), the Indian publisher can buy the book abroad and freely import it and re-sell it in India without obtaining a license from the owner of the Indian copyright in the work — a practice called parallel importation. It is important to note that the book still has to be legally purchased from the foreign publisher and re-sold in India and cannot just be illegally copied or imported into India.

Allowing parallel importation only liberalises the distribution of books after the first sale of the work and does not affect the copyright holder’s exclusive right to make the first sale of the work. Parallel importation takes into the international context the “first sale doctrine” in copyright law which provides that, after the first sale of the work, the copyright is exhausted and the copyright owner cannot prevent re-sale of the work.

Indian publishers oppose allowing parallel importation of books on the grounds that foreign publishers will stop licensing cheap Indian editions of their work to Indian publishers leading to rise in book prices in India. Further, if licensing ends, Indian publishers will have no incentive to invest in the marketing and promotion of books. In its report on the Copyright Amendment Bill 2010, the Department-Related Parliamentary Standing Committee on Human Resource Development disagreed and found that the present practice of publishing books under a territorial license results in very high prices of books and the low priced books are confined to old editions. However, notably, no empirical evidence was discussed by the Parliamentary Standing Committee in its Report before arriving at this conclusion. If it is true that the “cheap Indian editions” are limited to outdated works, then clearly the Parliamentary Standing Committee was correct in recommending the introduction of parallel imports and Indian publishers are only decrying the loss of their comfortable “license raj” and the introduction of competition through parallel imports.

Copyright law

While the foregoing controversies have attracted a lot of press, little attention has been paid to the fact that the Bill also seeks to modernise copyright law in view of the challenges raised by the new digital environment and the internet which has been described by the World Intellectual Property Organisation (WIPO) as “the world’s biggest copy machine.” While the older technologies of photocopying and taping were expensive, time-consuming and produced copies of lower quality than the original, the internet enables one to make instantaneous copies of the same quality. Earlier, copies had to be individually faxed or couriered to each recipient. Today, an unlimited number of copies can be distributed instantaneously around the world with the click of a mouse. Copyright law, therefore, has to rise to the challenge of how to protect the rights of authors of works published on the internet.

According to the Bill, the answer lies in the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) which address the challenge posed to the protection of copyright arising from dissemination of works over the internet. Curiously, even though India is not a signatory to either of these treaties which entered into force in 2002 and also refused WIPO’s call to sign the treaties in July 2008, the Bill seeks to conform Indian law to these “Internet Treaties.”

The first legal principle enshrined in the WCT and the WPPT is that existing rights will continue to apply in the digital environment. In other words, copyright holders will continue to be protected by copyright when their works are published on the internet. This principle is implicit in section 14 of the existing Copyright Act while not expressly stated.

The second legal principle of the WCT and WPPT is the “anti-circumvention provisions” which are intended to ensure that copyright holders can effectively use technology to protect their rights and to license their works online by, for example, using encryption technology, access control devices and copy control devices to protect their copyrighted works from cyber criminals hacking into passwords and illegally reproducing their works.

The second prong of the anti-circumvention provisions in the WCT/WPPT requires countries to prohibit the deliberate alteration or deletion of electronic “rights management information,” that is, information which accompanies any protected material and which identifies the work, its creators, performer or owner and the terms and conditions for its use. The Bill seeks to introduce both of these two prongs of the “anti-circumvention provisions” into the Copyright Act through the new sections 64A and 65B. The new section 65A(1) provides that any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by the Act with the intention of infringing such rights shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.

Interestingly, the Bill does not follow the approach of the Digital Millennium Copyright Act (DMCA) which incorporated the “anti-circumvention provisions” of the WCT into U.S. law in 1998 as it does not distinguish between technological measures which prevent unauthorised access to a copyrighted work and measures that prevent unauthorised copying of a copyrighted work. The DMCA only prohibits the circumvention of the access control measures and not the copy control measures because copying of a work may be fair use under appropriate circumstances. Moreover, the DMCA creates a civil right of action, in addition to criminal remedies, and any person injured by the circumvention of the technological measures intended to protect his rights can seek monetary damages against the offender in U.S. Federal Court. The Bill, however, fails to give copyright holders a right of action and provides only for criminal remedies.

Encryption techniques

The main objective of the proposed section 65A is to enable authors of copyrighted works to use encryption techniques in order to protect their copyrighted works against unauthorised dissemination on the internet. However, Indian law, in any case, severely restricts the use of encryption technology by providing that DoT approval is required for use of encryption levels higher than the outdated 40-key bit length. Today, 128-256-key bit length is required to protect communications from interception.

In sum, the Copyright Amendment Bill 2010 bravely takes socially progressive steps intended to ensure that lyricists and composers get a fair share of royalties and that Indians will have access to recent editions of foreign works at reasonable prices. However, in order to modernise Indian copyright law, the Bill has to go beyond only copying the provisions of the WCT and WPPT and should incorporate the provisions necessary to ensure that authors have the access to encryption and other technological means to protect their works published on the internet from hacking and can enforce those rights in the courts.

(Aparna Viswanathan is with Viswanathan & Co., Advocates, New Delhi, Bangalore and Chennai.)


The corrupt are afraid


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.