LAW RESOURCE INDIA

Shortcomings and malignant provisions

Posted in ANNA HAZARE CAMPAIGN, CORRUPTION, GOVERNANCE, JAN LOKPAL by NNLRJ INDIA on November 1, 2011
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.

ANIL DIVAN IN THE HINDU

A few major provisions of the Government Lokpal Bill make for a ticking time bomb. It is better to have no Lokpal rather than have the one envisaged by the government.

There is unanimity of opinion that corruption at the higher levels of governance can be fought by a strong, credible, effective and independent Lokpal mechanism. As far back as 1979, the Supreme Court, speaking through Justice V.R. Krishna Iyer, observed that “corruption and repression — cousins in such situations — hijack developmental processes.” President Pratibha Patil, in her Independence Day-eve speech, lamented that “corruption is a cancer affecting our nation’s political, economic, cultural and social life. It is necessary to eliminate it.” In his Independence Day speech, the Prime Minister expressed the need for “a strong Lokpal to prevent corruption in high places.”

The major flaw

In the Indian system of governance, a fundamental flaw is that it is impossible for the Central Bureau of Investigation, the premier anti-corruption investigative agency that is subordinate to the Prime Minister’s Office (PMO), to even commence an inquiry or investigation into allegations of corruption against the higher bureaucracy — which often acts in concert with the political executive — without the prior approval of the Central government under Section 6A of the Delhi Special Police Establishment Act. Thus, the CBI is unable to enforce the postulate laid down by Chief Justice J.S. Verma in the Jain Hawala case: “Be you ever so high, the law is above you.”

The golden key to combating corruption is to fashion an anti-corruption police force completely independent of the executive.

Government Lokpal Bill

In the short space of an article, one can only highlight and emphasise a few major provisions which are insidious and malignant in the Government Lokpal Bill. Unless these are dropped, the Bill will be a ticking time bomb. It is better to have no Lokpal rather than have the one envisaged in the government Bill.

Appointment of Chairperson and other members

The structure of the Government Lokpal Bill is such that it gives a dominant and preponderant voice to the political executive in the selection of the Lokpal (Chairperson and members).

The Selection Committee (Clause 4) consists of the Prime Minister (Chairperson); the Speaker of the Lok Sabha (normally appointed by and owing allegiance to the ruling combination); a Union Cabinet Minister nominated by the Prime Minister; and one eminent jurist and one person of eminence in public life, both nominated by the Central government.

Thus, in a nine-member Selection Committee four will be nominees of the government, and one the Speaker of the Lok Sabha, all enjoying the confidence of the ruling party. The other four members are Leaders of the Opposition in the Lok Sabha and the Rajya Sabha, a sitting judge of the Supreme Court and a sitting Chief Justice of the High Court — both nominated by the Chief Justice of India. How will such a committee inspire public confidence or ensure a credible and independent Lokpal mechanism?

As against this, the Jan Lokpal Bill (Version 2.3) provides for a Selection Committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, two judges of the Supreme Court and two permanent Chief Justices of the High Courts selected by collegiums of all Supreme Court Judges (four judicial members in all), the Comptroller and Auditor-General, the Chief Election Commissioner, and all previous chairpersons of the Lokpal.

It means a total of two politicians, four superior court judges, the CAG and the CEC. Surely, such a Selection Committee would inspire greater public confidence. The stranglehold of politicians representing the ruling combination in the Government Lokpal Bill is a highly malignant provision that requires to be summarily dropped.

Exclusion of Prime Minister

In an earlier article (The Hindu, July 1, 2011), I argued that the Prime Minister should be under the Lokpal. Article 361 of the Constitution grants immunity from criminal proceedings only to the President and the Governors (earlier the Raj Pramukhs) during their term of office. No immunity from criminal or civil liability has been granted to the Prime Minister. Thus the basic structure of the Constitution negates and denies any immunity to the Prime Minister.

Procedure and opportunity to suspected accused

Clauses 23 to 29 completely undermine the provisions and procedures under the Code of Criminal Procedure which apply to all crimes, including crimes committed under the Prevention of Corruption Act, 1988. Under the normal procedure, the police have the power to investigate, gather physical and scientific evidence, interview and interrogate individuals who can assist the investigation and, thereafter, furnish their final report to the appropriate court under Section 173 of the Code. It is then for the court to either frame charges against the potential accused or discharge them. During the investigation and the final report (popularly known as the charge sheet), there is no question of giving any opportunity to show cause or disclose to the accused the material or the evidence collected.

Under Clause 23, an opportunity to be heard, and a copy of the complaint and material collected, are to be given to the suspect at several stages before the completion of the investigation. Under Clause 24, inspection is to be allowed to the suspect when an investigation or inquiry is “proposed to be initiated by the Lokpal.” Similarly, under Clause 25, an opportunity to be heard is to be given to any person “other than the prospective accused.”

These provisions are bound to undermine effective investigation and collection of evidence. The prospective accused will act as an active terrorist to destroy the Lokpal’s efforts. Apart from going for judicial review at every stage, alleging lack of adequate opportunity to be heard, the potential accused, after inspection of the material, would have the opportunity to approach witnesses, intimidate or corrupt whistleblowers, and fabricate evidence and interfere with the investigation. These provisions are a ticking time bomb which can be detonated by the prospective accused at a time he chooses.

Inclusion of NGOs as public servants

Clause 17 of the government Bill and related clauses expand the definition of “public servant” to include non-governmental organisations/ societies/ their office-bearers who receive donations from the public. Even autonomous NGOs not controlled by the government but aided by it are brought within the definition of ‘public servant.’ This is the most mischievous provision with a view to harassing, intimidating and blackmailing NGOs/societies and their office-bearers who are the principal activists and whistleblowers under the Right to Information Act, and who are leading the movement for an effective Lokpal to curb corruption at the highest levels. These NGOs are liable under the normal criminal law and should be excluded from the definition of ‘public servant.’

Investigative machinery and prosecution wing

Under the Constitution, there are checks and balances on the political and bureaucratic executives. Broadly they are the judiciary, the CAG, and the CEC. Members of the higher judiciary, the CAG and the CEC cannot be removed by the political executive except by impeachment. This secures for them an independence from the executive which enables them to invalidate, audit and check the excesses of the executive. However, the anti-corruption machinery as indicated above is completely flawed.

It is essential that either the anti-corruption branch of the CBI be transferred immediately to function under the Lokpal mechanism so that it is completely free from executive interference, or the entire CBI be brought under the Lokpal mechanism and be made subordinate to it.

Once the investigative machinery is put in place under the Lokpal, it should be a separate ‘cadre’ and none of its members should go back to or be transferred to any Central or State cadre or other investigative organisations. In substance, the Lokpal and the investigative machinery should be totally insulated and independent of all outside interference, influence, favours and patronage. If the CBI is not under the Lokpal, turf wars and jurisdictional disputes between the CBI and the Lokpal will lead to litigation, scuttling the efficient working of the Lokpal.

Unless these fundamental flaws are eliminated, it is best to scrap the Government Lokpal Bill and continue with the present system because the remedy would be worse than the disease. The Lokpal as contemplated by the government will be misused by the executive to silence the anti-corruption movement. The efforts of civil society led by Anna Hazare will come to naught.

Compromise, accommodation and give-and-take are essential to work a successful and vigorous democracy. In conclusion, remember what Mahatma Gandhi said: “All compromise is based on give-and-take, but there can be no give-and-take on fundamentals. Any compromise on fundamentals is a surrender. For it is all give and no take.”

(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/article2586273.ece

3 Responses

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  1. MANI RAM SHARMA said, on November 1, 2011 at 11:25

    We are unable to find out a suitable cricket coach out of 125 crore indians. Then it seems very difficult that any Indian blood will be suitable for any anticorruption drive whether he is independent or put under subordination of any politician or bureaucrate.

  2. K. Chandra said, on November 10, 2011 at 08:46

    Sir,
    Without implying my agreement on other points I would like to express my disagreement on certain points raised in the recent article by Shri Anil Divan Sr. Advocate.. The clauses 23 to 29 will prove more of an antidote to malignancy rather than being malignant. Absence of express obligation to provide opportunity of hearing to accused is a big shortcoming in the Cr.P.C. The present Cr.P.C. also allows a person to be put to trial on the basis of one sided evidence of complainant. Various reforms have taken place but have failed to nail down vast, unrestrained and undesirable discretion to the IO. The accused is not allowed to know how vast or narrow the investigation is going; how deep or shallow the investigation is going. To confine the matter to anti-corruption let us take for example a case of disproportionate assets or a “DA” case. One of the basic ingredient of the offence is inability of an accused to explain assets and pecuniary resources in his possession on the basis of known sources of income. Unless an accused is asked to explain the assets and pecuniary resources alleged to be in his possession, there is no way he can be charged, and much less held, having failed to account for the assets/pecuniary resources. Without giving such an opportunity during investigation and framing charges against an accused is something which can not be cherished in a developed legal system. In case the accused is actually guilty of amassing unaccounted wealth, he can claim acquittal merely because no opportunity has been given for explaining the wealth. A trial is no substitute for an opportunity during investigation. The charge of inability to explain will fall flat if no opportunity is given before framing of charges. If the accused is innocent, then also there is no propriety of unnecessarily charging and putting an innocent person to trial. Then there are other practical limitations of trial. A person may not have original receipts of Income Tax Returns filed 15 – 20 years ago. The IT department mostly is not able to provide certified copies of such old records either because they are weeded out or because they are not traceable. The ward of a person changes many times during this long period due to variety of reasons including but not limited to change of address, change of business name or title, change of employer, reorganization of income tax wards or redistribution of work among ITOs etc etc. The accused in a trial is not allowed to produce copies other than original or certified. It is much difficult if not impossible to convince a judge to admit and much less rely a copy in the possession of accused, the provisions relating to secondary evidence notwithstanding. The investigation however has much better resources to verify the veracity of copy of income tax return provided by the accused and can always try much better to trace the returns. Hence an innocent can get convicted whereas a guilty may get acquitted in the process. In the same category of cases i.e. DA cases there has to be transparency about check period.

    Without giving an opportunity the investigation into DA cases is taking longer than justified or desirable. The speed of investigation is lost not because accused is heard; it is generally for avoidable reasons. A time of one to four weeks devoted to hearing the accused is much more worth than the time spent. Years and decades are lost before an investigation is concluded. Why cant we hear an accused is hard to understand.

    A still more serious concern must be raised by possibility of concluding an investigation without actually completing it.

  3. Daniel Murzello said, on March 17, 2012 at 11:16

    Our Housing Society Office Bearers, Have been Harassing us and Demanding Money from us for no reason Since 2003, and have always taken advantage of their post, and misuse their powers.. They do not have any Records or Documents of the Amount Money, They keep demanding from us, But very smartly add Interest to that amount Every Year. Only Because we have asked them for an explanation of the amount, which they do not seem to have. They Threaten to Seize our room and Cut our Water Supply, if we dont agree to their Demands.They even sent a letter to the NMMC Ward Officer Water Dept, Nerul , Navi Mumbai. to disconnect our Water supply.. They even send Notices Demanding Money Directly on our Name.Though they have not made us Members till date in the society. Even the Monthly Service Charges we pay every month, even those Receipts are given on the Previous Owners Name. In the Notice sent, their Advocate has demanded 1,000/- Rs One thousand only ,extra for the notice sent , however they demand 16,000/- Rs Sixteen thousand as legal fees.In their other Notice sent by another Advocate to us demanding 1,500/- Rs One thousand five hundred only, extra for the notice sent, however they demand 25,000/- Rs Twenty-five thousand and more as legal fees and litigation etc..Reason best known to them..Why?? Mr S M Shrivastav – [Former Secretary], Mr Anant Rajput – [Former Secretary]
    Mr Ashish Sheety – [Secretary], Mr Vijay Kadam – [Treasurer]
    Mr D D Kolte – [Chairman / President] Since 1996, Till Date.
    None of them have been able to provide any explanation regarding the amount they keep demanding from us.Reason best known to them Why?? We were told to go to court by Mr D D Kolte – [Chairman / President] regarding this issue. We Were so fed up and tired by the harassment and illegal demands by the societies office bearers. So as a consumer we filed a complaint In the Consumer Disputes Redressal Forum. CBD Navi Mumbai. My complaint no 45/2010 in Feb 2010. However when ever we were called to Court several times, The society office bearers Never Came. As they think they are the Landlords of the Society. However surprisingly an order was passed in Dec 2010, After nearly a year. By Mr R D Mhetras [President], and Mrs Jyoti A Mandhle [Member], That this complaint cannot be put up in the Consumer Disputes Redressal Forum. CBD Navi Mumbai and Dismissed the Case.. Unfortunately Housing societies do not come under the RTI Act 2005 So We approached the Joint Registrar of CoOperative Housing Societies. CBD Navi Mumbai. Though we have been writing to the Joint Registrar of CoOperative Housing Societies. CBD Navi Mumbai. Since 2006 to get this issue cleared however we have not got any favorable response on this issue. So we wrote an RTI application , Not One But we had to write Three RTI applications, Since May 2011. But no information was given to us.Again.. So we gave another RTI application Our Second Appeal To The Commissioner , State Information Commission, CBD Navi Mumbai in Sept 2011. However its been 4 months and we have not received any information from the Commissioner, State Information Commission, CBD Navi Mumbai. nor from the Joint Registrar of CoOperative Housing Societies. CBD Navi Mumbai. In fact we also sent a reminder to The Commissioner, State Information Commission, CBD Navi Mumbai. Regarding our RTI application.. We received a letter from the Joint Registrar of CoOperative Housing Societies. CBD Navi Mumbai, calling us no the 8th of Dec 2011. As they had received a letter from The Commissioner, State Information Commission, CBD Navi Mumbai. Appeal No KR2075/2011, Dated 14th Oct 2011. Requesting them to give us the Information we had asked for, However when we were called in the office the Joint Registrar Mr Vikas Rasal ,told us that No information can be provided since the RTI Applications were not in proper format the way he wants it to be when we asked what is the proper format He said I am not here to give Advise and refused to give any thing in writing..And WASTED another day of ours.. Is Our System So Bad…That a common man has to wait so long for Justice and still does not know weather he will get Justice or not…. AS DELAY IN JUSTICE IS INJUSTICE.. The Office Bearers have still not given us any Explanation of the Money they keep Demanding. Though we have requested them many Times.since 2003(nearly 9 years). The Joint Registrar of Co operative housing societies have also ignored all are request which we have been writing since 2006 (nearly 6 years). The Consumer Disputes Redressal Forum. CBD Navi Mumbai. Took nearly a year only to decide, That this complaint cannot be put up in the Consumer Disputes Redressal Forum. CBD Navi Mumbai And now The RTI Act seems to waste our time as well. Leave aside Justice we just need Information .. As It Seems RTI Act Is Just A Waste Of Time, Which We Pay For.. However My Family and i have decided not to give up and not to Given to their illegal demands and to fight against such Dishonest people in our Society.. AS SUCH HARASSMENT HAS TO STOP..
    By,
    Daniel Murzello

    Room No 3, Prarthana Chs,

    Sector 18/A, Plot no 185,

    Nerul, Navi Mumbai
    400706.
    Contact no 9702 842 999


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