Need for a more considered debate on lokpal

RAJINDER SACHAR IN THE TRIBUNE

The debate on the Lokpal Bill requires calm and cool consideration. The timing of the debate, surcharged before the election in five states, is not conducive and is unlikely to do justice to the enormity of the task

The debate in Parliament on the proposed Lokpal legislation has unfortunately touched a nadir; instead of discussing the legislation in a sober atmosphere and making a conscious effort to arrive at as much consensus as possible, the political parties are instead indulging in acrimonious and heated exchanges.

The exercise of the government in furtively slipping in various quotas, including for the minorities, appears a deliberate one with one eye on UP elections, notwithstanding doubts on the legality of it expressed by former Supreme Court judges and jurists. Why would any one imagine that the selection committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha and the Chief Justice of India, would not consider members from amongst Muslims and women, when any number of them are available from these sections on their own merit ?

Why indeed was this non-issue allowed to take over the debate, unless it was a device to stall the Lokpal legislation ? Let us not forget that parties led by Mulayam Singh and Laloo Prasad were the ones which sabotaged the Women’s Reservation Bill by insisting on a sub quota for the OBCs. They managed to embarrass Sonia Gandhi and Sushma Swaraj, who had earlier embraced, without any embarrassment, and congratulated each other over their victory in the Lok Sabha. But they had to beat a retreat in the Rajya Sabha.

The suggestion that if there are allegations against the Prime Minister, they would be decoratively shelved and brought out after he remits office (which may be even 5 years later), also does not make any sense. An incumbent Prime Minister of Italy this year was forced to resign on corruption charges after he was found to be guilty by a court. Similarly Jacques Chirac, a former President of France was recently sentenced to 7 years of imprisonment, again for corruption while a former President of Israel has been sent to jail on grounds of sexual harassment and moral impropriety.

The most contentions matter of the CBI also remains unresolved. Ideally, the appointment of the Director, CBI should be by a joint committee consisting of the Lokpal and a Standing Committee of Parliament. Give the CBI Director a fixed tenure for five or ten years. He should have full administrative control over the staff of C.B.I. and over earmarked funds from the Consolidated Fund of India.

There should be no interference with his day to day work by the Central Government or the Lokpal. However the Lokpal would be entitled to ask and receive reports from him at regular intervals. The Director, CBI shall not be removed from service except in the manner and on similar grounds as a judge of the Supreme Court – in the same manner of removal, which applies to the removal of the Chief Election Commissioner.

Immunity for MPs

Surprisingly, not withstanding bitter wrangling on most other aspects, all Members of Parliament have unanimously agreed to keep themselves outside the ambit of the Lokpal and the CBI for any corrupt action and bribery inside the Parliament. To me this is scandalous and unacceptable.

In their defence, Members of Parliament invoke Article 105 of the Constitution, and the widely criticised  majority  judgment (3 against 2) in the Narasimha Rao case (1999). The minority judgment, however, had warned that this interpretation could lead to a charter for corruption and elevate Members of Parliament as “super-citizens, immune from criminal responsibility”.

It would indeed be ironic if a claim for immunity from prosecution, founded on the need to ensure the independence of Members of Parliament in exercising their right to speak or cast their vote in Parliament, is put forward by a Member, who has bartered away his independence by agreeing to speak or vote in a particular manner in lieu of illegal gratification. In other countries such a conduct of MPs is treated as criminal, since 1875, for example, in Australia.

Calm consideration

The matter of Lokpal is too important and needs to be discussed more seriously and not under pressure of forthcoming elections in Punjab and in Uttar Pradesh. The knee-jerk reaction of the Central Government to Anna Hazare’s threat of fast, was possibly prompted by the Opposition’s eagerness to cash on the civil society movement and opposition leaders cosying up to Anna Hazare.

Their puerile excuse that they sat with Hazare because they wanted to explain their point of view is unacceptable political behaviour. Political Parties should hold their own meetings to explain their position to the public. Anna Hazare does have the right to muster support, arouse masses and exercise his democratic rights – and to put pressure on the government and even the Parliament, to pass a particular law because the ultimate sovereign are the people. But there is a caveat that this discussion requires a calmer atmosphere. Could the parties unanimously agree to adjourn the discussions till after the UP elections are over, with a pledge to pass the legislation as the first item when Parliament begins its next session ?

As a measure of his genuine concern for a strong Lokpal, Anna Hazare on his part, one hopes, would reciprocate by not going on fast or agitation. He can rest assured that people’s determination to have a strong Lokpal is not so weak as to let the government ignore its solemn pledge to pass the Bill.

If the government prevaricates, it must know that consequences could be monumental and no government can remain in permanent confrontation with its real masters, the people of India.

The writer is a former Chief Justice of Delhi High Court

But the flaws in the Bill cannot be settled on the street. Agitations may even destroy the country

Kuldip Nayar IN THE TRIBUNE

The amended Lokpal Bill being debated in Parliament does not appear to give enough powers to the institution of the Lokpal (Ombudsman) to deal with corruption within the government. Despite the government claiming that it has given enough powers in the Bill and addressed the concerns raised by Anna Hazare, he has already rejected the Bill introduced in Parliament and has proceeded on fast in Mumbai. He has also threatened to demonstrate outside the houses of ministers and MPs in New Delhi. He has also called upon the people to fill the jails (Jail Bharo) and has warned the Congress that he would himself campaign against the party in the forthcoming elections in five states. The ruling Congress President Sonia Gandhi has picked up the gauntlet, declaring that the party is ready for the fight.

The key issue is control over the Central Bureau of Investigation (CBI). The government has rejected the demand for transferring its administrative control to the Lokpal or to any independent agency. Apparently, the government has a lot to hide and, therefore, cannot allow its omissions and commissions to be exposed.

The UPA government led by Manmohan Singh has used the CBI to put pressure on UP Chief Minister Mayawati and former Chief Minister Mulayam Singh Yadav, whenever it has been threatened with defeat in the Lok Sabha. The Congress has a strength of 207 in the 545-member Lok Sabha. The pressure works because both Mayawati and Mulayam Singh are facing CBI cases for their disproportionate assets.

The Congress alone cannot be blamed though. All governments, including the one led by BJP leader Atal Bihari Vajpayee have used the CBI to serve their own interest. A senior opposition leader from Bihar admitted on the floor of the Lok Sabha that they too had misused the CBI when they were in power. Many former directors of CBI have recorded in books they have written after their retirement that they were pressurised by one government or the other to prosecute or not to prosecute in an assortment of cases involving politicians and political parties.

Parties united

I was a member of the Rajya Sabha when the Bill to spell out control over the CBI came up before the Parliamentary Standing Committee on Ministry of Home Affairs. The then Chief Justice of India J.S.Verma had proposed in a Hawala case to set up an independent Directorate of Prosecution (DOP) to have control over the CBI. But no political party — all of them were represented in the Committee — wanted the CBI to be autonomous.

I was disappointed when Justice Verma’s proposal was summarily rejected. The administrative control of the government over the CBI was endorsed. So much so that the Committee restored the Single Directive which the Supreme Court had thrown out. The Single Directive meant that the government’s permission was required before initiating an inquiry or action against officers of the rank of Joint Secretaries and above. There is hardly a minister who does not use these officers to serve his own or his party’s interests. The details of the 2G Spectrum scam, now revealed by the CBI, show how ministers were in league with the private parties in the allotment of licences without following any of the established rules.

The Lokpal is toothless without control over the CBI and will be quite helpless to probe into the misdeeds of ministers or senior officials.

My main objection is against the provision for 50 per cent reservation. Quotas are alright in jobs or educational institutions. But when we are selecting people for Constitutional positions, we want the best talent available. I am told that in the Congress, some voices have been raised for having reservations in the High Courts and even the Supreme Court. What kind of India are we building when parochialism is on the agenda of political parties for the sake of placating voters of one community or the other?

Unfortunately, the government has already conceded the enumeration of castes in the in the 2011 census. I wish the counting was designed to learn how many poor people are there in the country. By introducing reservation in the Lokpal, the government is sowing seeds of division and conflict in the fight against corruption. I hope that Anna Hazare would raise his voice against reservation in Lokpal.

Anna’s firm ‘no’ to the Lokpal Bill indicates that the battle may go to the streets. This is undesirable and will destroy the country. Political parties should collectively think how to sort out the issue without agitations. The dictum that the loss of one is the gain of the other is shortsighted. Whatever the moves or counter-moves of political parties, people should be vigilant and not play into their hands.

http://www.tribuneindia.com/2011/20111228/edit.htm#6

Advertisements

Freeing the CBI

G P JOSHI IN THE INDIAN EXPRESS

The debate on the Lokpal bill has thrown up three propositions about the CBI. One, retain the status quo; two, transfer the control to the Lokpal; and three, make the CBI an independent organisation. The CBI is now governed by an outdated act of World War II vintage, called the Delhi Police Establishment Act, which was enacted in 1946 to regulate the functioning of the Special Police Establishment. Section 4 (1) of this act vests the superintendence of the CBI in the Central government, just as Section 3 of the police act of 1861 vests the control of the state police force in the state government.

Since the word “superintendence” has not been defined in any law, both the Central and state governments have misused police forces to serve their partisan interests. There is a general perception that the CBI, like other police forces in the country, is influenced in its work by political considerations.

Can any government ever think of making the CBI an independent organisation? If one plays the devil’s advocate, one can think of two arguments that the Central government can cite in favour of retaining its control over the CBI. First, any police force, including the CBI, is a part of the executive, and in the Westminster model of governance that we have adopted, the minister concerned is responsible to Parliament for the efficient and honest functioning of his departments. Second, the police, including the CBI, enjoys tremendous powers and it is important for the government to ensure these powers are used judiciously.

While the first argument can be considered valid, the second can be contested. It is true that in a democratic system, police powers need to be controlled to prevent their misuse, but then it has to be realised that controlling the police itself becomes a source of tremendous power that can be misused to serve partisan interests, as has happened so frequently in this country. What is needed is to set up institutions and mechanisms to balance these two requirements.

In the judgment on the hawala case, the Supreme Court tried to make one such attempt. While the court transferred the responsibility of exercising superintendence over the CBI’s functioning from the government to the Central Vigilance Commission (CVC), it simultaneously held that the concerned minister should be ultimately responsible for its efficient functioning to Parliament. The court maintained that none of the minister’s powers could extend to interfering with the course of investigation and prosecution in any individual case. Investigation is to be governed strictly by the provisions of law.

Unfortunately, the government did not implement the judgment of the SC either in letter or in spirit. The Central Vigilance Commission Act of 2003 derailed the judgment in three important ways. One, it resurrected the Single Directive despite the fact that the court had held it null and void, being bad in law. Two, it did not transfer superintendence to the CVC fully. The CVC Act 2003 prescribed that the CVC shall exercise superintendence not over the CBI but over the Delhi Special Police Establishment (DSPE) only, regarding cases registered under the Prevention of Corruption Act 1988. Third, in exercising superintendence over the organisation, the government did not keep itself within the boundaries as defined in the judgment.

The possibility of misuse of the police by the government of the day has caused concern in other countries too. They have found solutions by developing traditions of good governance and setting up new institutions. The UK seems to have successfully implemented a very subtle distinction between the police as an organisation and policing as a set of activities. While the police as an organisation is the responsibility of the government, policing as a set of functions is the responsibility of the head of the police force. Government’s role is to formulate policies, provide budget, set standards and monitor performance, but it cannot give any operational direction to the police chief. The police acts in some other regions and countries have dealt with this problem by clearly defining the role and responsibilities of the government and the police department. In Queensland in Australia, communication between the minister and the commissioner of police is guided by clear provisions of the police act. Directions from the minister have to be in writing and the commissioner of police is bound to comply with the directions, but keep a record of all correspondence, which is later placed on the floor of the assembly.

In India, there could be mechanisms and institutions that will ensure the CBI’s functional autonomy, as no government will ever agree to relinquish its control over an organisation like the CBI. Also, the Lokpal could have its own independent investigating agency, which need not necessarily be the CBI.

 The writer is a former director, Bureau of Police Research & Development, express@expressindia.com

http://www.indianexpress.com/news/freeing-the-cbi/892723/0

For a reasoned debate

RAJINDER SACHAR IN THE TIMES OF INDIA

The debate in Parliament on the Lokpal Bill has unfortunately touched a nadir. Instead of discussing the proposed legislation in a sober atmosphere and with conscious effort to arrive at as much consensus as possible, political parties have instead indulged in mutual attacks. The government’s furtive slipping in of various quotas, including for the minorities, was a deliberate ploy with an eye on the UP elections. This, despite the doubts on the move’s legality expressed by former Supreme Court judges and jurists. Could anyone imagine that the selection committee composed of the prime minister and leader of the opposition, irrespective of their party affiliation, and a non-political chief justice of India, would not include members from among Muslims or women based on their own merit? Why was this non-issue raised unless it is a device to stall the legislation? Let us not forget that the Mulayam Singh-Lalu Yadav groups sabotaged the women’s reservation Bill by insisting on quotas.

Further, the suggestion that any allegations against the prime minister would have to be decoratively pigeonholed and brought out only after he remitted office (which may be five years later) does not make sense. Are we living in a democracy or under the kingship of a representative of the divine?

Also, the most contentious matter relating to the CBI remains unresolved. Its director’s appointment should be by a joint committee consisting of members of the Lokpal and the standing committee of Parliament. Give him a fixed tenure of, say, five to 10 years. He should have full administrative control over CBI staff and earmarked funds from the Consolidated Fund. There should be no interference in his day-to-day functioning from the government or the Lokpal. However, the Lokpal would be entitled to ask for and receive reports from him at regular intervals, and also authorised to convey its decisions on such matters. He should not be removed from service except in the manner and on like grounds as a Supreme Court judge – the same applies to the chief election commissioner.

I for one would not limit the choice necessarily to a police official; he could even be from outside the service. If it’s decided to have a chief vigilance commissioner, the same conditions and procedure could apply to the CBI director.

Surprisingly, notwithstanding bitter wrangling on other aspects, all members of Parliament agree to keep themselves immune from the ambit of the Lokpal and even the CBI for corrupt actions and bribery if committed inside Parliament. To me, this is scandalous and unacceptable. In their defence, MPs invoke Article 105 of the Constitution, and the widely criticised majority judgment of three against two in the Narasimha Rao case, 1999 (I believe the matter is referred to a larger bench).

The minority judgment, however, warned that this interpretation could lead to a charter for corruption so as to elevate MPs as “super-citizens, immune from criminal responsibility”. It would indeed be ironic if a claim for immunity from prosecution – founded on the need to ensure the ‘independence’ of MPs in exercising their right to speak or cast their vote in Parliament – could be put forward by a member who has bartered away his independence by agreeing to speak or vote in a particular manner in lieu of illegal gratification that has been paid or promised. By claiming the immunity, he would only be seeking a licence to indulge in corrupt conduct. In many other countries, such conduct of MPs is treated as criminal.

To invoke Article 253 of the Constitution for enactments concerning Lok Ayuktas is of doubtful legality and imperishable in our federal set-up. Surely no state can resist the public sentiment built in favour of Lok Ayuktas.

The matter of the Lokpal is too important and needs to be discussed more seriously, and not under pressure related to the forthcoming elections in Punjab and especially UP. Also, the panicky reaction of the government to Anna Hazare’s fast is compounded by the opposition wanting to cash on it, as when they went to his recent sit-in to cosy up to him. Their puerile excuse that they wanted to explain their point of view is unacceptable. Political parties hold their own meetings to explain their position to the public. We go to Jantar Mantar to show our solidarity with the victims of forced displacement or against the government’s illegal actions against the deprived poor. Parties do not go to the sit-in of a person they now want to deride and ridicule.

Of course, I agree Anna Hazare has full right to muster support from the masses and exercise his democratic rights, as well as put pressure on the government and even Parliament to pass a particular law. For, the ultimate sovereign is the people. But the caveat is that the discussion on the Lokpal requires a calmer atmosphere. Therefore, political parties should unanimously agree to adjourn the discussions till after the pressure of the UP elections is over, with a pledge to pass the legislation as the first item when Parliament begins the next session.

As a measure of his genuine concern for a strong Lokpal, Anna ought to reciprocate by not going on fasts. He can rest assured that the people’s determination to have a strong Lokpal is not so weak as to let the government avoid its solemn pledge to pass the Bill in the next session of Parliament. If the government further prevaricates, most know that the consequences could be monumental. No government can remain in permanent confrontation with its real masters, the people of India.

(The writer is a former chief justice of the Delhi high court)

http://timesofindia.indiatimes.com/home/opinion/edit-page/For-a-reasoned-debate/articleshow/11267895.cms