The Collegium Controversy

Supreme Court of India

KRISHNADAS RAJAGOPAL IN THE INDIAN EXPRESS

What is the collegium system?

It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution.

What does the Constitution actually prescribe?

Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.

Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.

How and when did the other system evolve?

The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”. The S P Gupta case (December 30, 1981) is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years.

How did the judiciary come to get primacy?

On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case — the “Second Judges Case”. This was what ushered in the collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments. It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.”

How final was this?

Justice Verma’s majority judgment saw dissent within the bench itself on the individual role of the CJI. In a total of five judgments delivered in the Second Judges case, Justice Verma spoke for only himself and four other judges. Justice Pandian and Justice Kuldip Singh went on to write individual judgments supporting the majority view. But Justice Ahmadi had dissented and Justice Punchhi took the view that the CJI need not restrict himself to just two judges (as mentioned in the ruling) and can consult any number of judges if he wants to, or none at all.

For the next five years, there was confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions without consulting two colleagues. Besides, the President became only an approver.

What was done to deal with the confusion?

In 1998, President K R Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments/transfers; this came to be the present form of the collegium (see box).

Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of the highest judiciary over the executive. This was the “Third Judges Case”.

What are the arguments against the collegium system?

Experts point to systemic errors such as:

The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees;

A closed-door affair without a formal and transparent system;

The limitation of the collegium’s field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.

What moves were taken to correct these?

The Law Commission in its 214th Report on ‘Proposal for Reconsideration of Judges cases I, II and III’ recommended two solutions:

To seek a reconsideration of the three judgments before the Supreme Court.

A law to restore the primacy of the Chief Justice of India and the power of the executive to make appointments.

What is the suggested alternative to the collegium?

A National Judicial Commission remains a proposal. The Constitution (98th Amendment) Bill was introduced in the Lok Sabha by the NDA government in 2003. It provided for the constitution of an NJC to be chaired by the CJI and with two of the senior-most judges of the Supreme Court as its members. The Union Law Minister would be a member along with an eminent citizen to be nominated by the President in consultation with the Prime Minister. The Commission would decide the appointment and transfer of judges and probe cases of misconduct by judges, including those from the highest judiciary.

SC guidelines on appointments

1 The term “consultation” with the Chief Justice of India in Articles 124 (2), 217(1) and 222 (1) requires consultation with a plurality of judges in the formation of the opinion of the CJI. The sole, individual opinion of the CJI does not constitute consultation.

2 The CJI can only make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the four senior-most judges of the Supreme Court. As far as the High Courts are concerned, the recommendation must be made in consultation with the two senior-most judges of the Supreme Court.

3 Strong cogent reasons do not have to be recorded as justification for a departure from the order of seniority in respect of each senior judge who has been passed over. What has to be recorded is the “positive reason for the recommendation”.

4 The views of the judges consulted should be in writing and should be conveyed to the Government of India by the CJI along with his views to the extent set out in the body of this opinion.

5 The CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations.

6 Recommendations by the CJI without [such compliance] are not binding upon the government.

7 The transfer of High Court judges is judicially reviewable only if the CJI took the decision without consulting the other four judges in the Supreme Court collegium, or if the views of the Chief Justices of both High Courts [involved in the transfer] are not obtained.

8 The CJI is not entitled to act solely in his individual capacity, without consultation with other judges of the Supreme Court, in respect of materials and information conveyed by the Government for non-appointment of a judge recommended for appointment.

9 The CJI can consult any of his colleagues on the appointment of a HC judge to the Supreme Court or transfer of a puisne judge. The consultation need not be limited to colleagues who have occupied the office of a judge or Chief Justice of that particular High Court .

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JAN LOKPAL BILL : Prime Minister writes to Shri Anna Hazare

Manmohan Singh, current prime minister of India.

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The Prime Minister has written to Shri Anna Hazare on the Lokpal issue. The text of the letter is as follows:

Over the last few days, I have watched with increasing concern the state of your health. Despite the differences between the Government and your team, I do not think that anybody is or should be in any doubt about the deep and abiding concern which I and our Government share about your health, arising from your continuing fast. I have no hesitation in saying that we need your views and actions in the service of the nation, from a robust physical condition and not in the context of frail or failing health.

I have maintained that your and our object is identical viz. to reduce significantly, if not eliminate, the scourge of corruption from this country. At worst, our paths and methodologies may differ, though I do believe that even those differences have been exaggerated. The Government is committed to passing a constitutionally valid and the best possible Lok Pal legislation with inputs from Civil Society with the broadest possible consensus. We are ready to talk to anybody. However, we will have to keep in mind Parliamentary supremacy and constitutional obligations in matters of legislation. As a Government we respect and are responsible to the Will of the Indian People as represented by Parliament.

As you are aware, the Lok Pal bill is now before a Standing Committee of Parliament. I have made it clear earlier and would like to restate that all options are open before the Standing Committee. Undoubtedly, they would be entitled to consider, in detail and clause by clause, subject to their discretion, not only the Bill introduced by us but the Jan Lokpal Bill and other versions like those prepared by Ms. Aruna Roy. Equally, I do maintain that they are fully entitled to make any changes to the Bill introduced by the Govt. and referred to them. In that view of the matter, the formal non introduction of the Jan Lokpal Bill version by the government is irrelevant and would largely boil down to a semantic debate.

Nevertheless, in view of the concern repeatedly expressed by your team that the Jan Lokpal Bill version should be before Parliament, but more particularly and more importantly, in view of my deep and abiding concern for your health, our government is prepared to request the Speaker, Lok Sabha to formally refer the Jan Lokpal Bill also to the Standing Committee for their holistic consideration along with everything else. Furthermore, if you have any anxieties about time and speed, the Government can formally request the Standing Committee to try, subject to its discretion and the necessity to reflect deeply and spend adequate time on an important Bill, and fast track their deliberations to the extent reasonably feasible.

I would like to say that this letter and each suggestion herein is actuated solely by the twin considerations of deep and genuine concern about your health and the emergence of a strong and effective Lok Pal Act in accordance with established constitutional precept and practice.

I do hope that you will consider my suggestions and end your fast to regain full health and vitality.

‘A gigantic institution that draws powers from a statute based on questionable principles’

Efforts to establish an Ombudsman-type institution in India started with the recommendation of the first Administrative Reforms Commission under the chairmanships of the late Shri Morarji Desai and the late Shri K. Hanumanthaiah during the 1970s. Bills were introduced in Parliament more than once, but we have not yet been able to bring about a consensus of views on what an Ombudsman-type institution, namely the Lokpal, should look like and the kinds of powers that should be vested in it. Even as the government is working on a draft bill, some civil society actors have come up with a draft Jan Lokpal bill demanding the establishment of a strong Lokpal that will tackle both corruption and maladministration that plague the government at various levels. Citizens can make complaints to the Lokpal directly about any act or omission that constitutes an offence under the Prevention of Corruption Act, 1988, against any public servant, including the prime minister, ministers of various ranks, members of Parliament, all government servants and employees of statutory corporations. Powers of inquiry, investigation, prosecution, oversight, enforcement of orders, tapping phones and intercepting messages, confiscating property, etc are all proposed to be vested on a single authority, namely the Lokpal. Such privileging of a single authority with wide-ranging powers and functions is unparalleled in the country’s legislative history and is perhaps unwise. An examination of the provisions contained in the Jan Lokpal bill 2011 (version 2.2) gives rise to the following major areas of concern:

Combining investigation and prosecution powers in the Lokpal: The combination of powers to investigate and prosecute public servants for offences of corruption goes against the basic principle of the separation of these two functions in the criminal justice system, which was accomplished as far back as in 1973. A prosecutor is an agent of justice and an officer of the court. He or she must apply an unbiased and independent mind to the case prepared by the investigating officer. Such independence may not be possible if the prosecution agency is under the overall control of the Lokpal.

 Vagueness of definitions: Certain terms as defined in the draft bill are vague. For example, “vigilance angle” includes within its ambit acts such as “exercise of discretion in excess”, “indulging in discrimination through one’s conduct directly or indirectly”. These are loose expressions of noble intent, but can cause havoc during application and judicial interpretations. Similarly, a whistleblower is defined as a person who faces a threat of professional or physical harm, or has been actually harmed for making a complaint to the Lokpal, or for making a request for information under the Right to Information Act, 2005. This is more restrictive than the definition of a whistleblower contained in the 2010 bill pending in Parliament. The mere making of a public interest disclosure of wrongdoing is adequate for the purpose of being identified as a whistleblower under that bill.

Selection committee: The draft bill requires that two of the youngest judges of the Supreme Court and two youngest chief justices of high courts to be part of the selection committee for the Lokpal. While the principle of length of service… which itself contributes to experience and knowledge guides the idea of having the seniormost judges on such panels, the underlying principle of choosing the youngest judges is not very clear. What criteria will be applied in this regard — actual age of the judge, or the length of service?

 Appointment of the Lokpal: Clause 8(11) gives a high degree of finality to the list of names recommended by the selection committee for filling up vacancies in the Lokpal. The president is required to only sign on the dotted line. The president must be allowed the space to satisfy himself/herself that the procedure for selection as laid down by the law has indeed been observed and the best candidates have been selected through due process. If these criteria are not fulfilled, the president must have the power to request the committee to reconsider its recommendations. The inclusion of the outgoing members of the Lokpal in the committee will needlessly inflate its size with no major purpose. The outgoing members may instead be consulted informally before the final list of candidates is prepared.

Videographing the selection process: The draft bill envisages the videographing of the entire selection process and making it public. While interviews of candidates may be made public, the committee must be allowed the space to deliberate in confidence while making a final decision. The outcome of the discussions and the reasons for selection may indeed be made public but if the deliberations are also made public, the candour and freeness of the discussions are likely to be affected adversely.

 Lokpal fund: The draft bill envisages the creation of a fund into which all penalties and fines imposed by the Lokpal and 10 per cent of the monies confiscated will be deposited. The Lokpal will have absolute discretion to use these funds to enhance or upgrade the infrastructure of the Lokpal. This provision ignores the principle of legislative oversight over the manner of spending of funds collected from the public. Insulating large sums of money from parliamentary scrutiny does not lead to stronger mechanisms of accountability.

 Independence of the judiciary: The draft bill in a few places encroaches upon the constitutionally guaranteed independence of the Supreme Court. The provision relating to removal places several restrictions on the inherent powers of the Supreme Court to determine the number of justices who will hear a case or even dismiss a case in liminae.

Further, the draft bill brings all justices of the Supreme Court and the high courts under the ambit of the Lokpal. Offences of corruption are better handled by a separate body such as a national judicial accountability commission. Clauses 17 and 18 of the draft bill give powers of appeal to the Lokpal over all the actions of the justices of the Supreme Court and the high courts. A mere allegation of mala fide against a judicial body is adequate for the Lokpal to start an inquiry or investigation into the actions of judges. This is entirely undesirable as it violates the principle of independence of the judiciary which enables judges to act without fear.

 Power of review over executive decisions: Clauses 8 and 17 turn the Lokpal into a civil court that will reverse the decisions of the executive such as grant of licences, permits, authorisations and even blacklist companies and contractors. This is not the job of an Ombudsman-type institution. Instead, the Lokpal must make recommendations to the public authority to take such actions and any failure to comply with must be dealt with by the Lokpal by approaching the appropriate court for issue of an enforcement decree.

 Transparency must be balanced with other public interests: It is laudable that the draft bill places a lot of emphasis on transparency in the proceedings of the Lokpal. However, the draft bill fails to balance this public interest with other important public interests such as the right to privacy and reputation. In our society, it is not uncommon for persons accused of offences to be stigmatised even though they may eventually be acquitted by a court of law. It is important to ensure adequate balance between the need for transparency and the need to protect privacy and reputation of individuals.

 Extraordinary powers of the Lokpal: The draft bill seeks to vest enormous powers in the Lokpal such as telephone tapping, issue of letters rogatory, confiscation of property for making false assets statements, etc. While these powers may be necessary for tackling corruption, there must be adequate checks and balances to prevent their misuse. Lord Acton famously said: “All power tends to corrupt; absolute power corrupts absolutely.” The draft bill does not provide for appeals against most actions and orders of the Lokpal. This is a major lacuna. Letter rogatory unless issued by an independent court may not be valid in external jurisdictions. The efforts to tackle corruption in extra-territorial jurisdictions may come to naught merely because of this provision. The draft bill also lacks procedural safeguards save the requirement of giving a hearing to a public servant prior to confiscation of property.

The Lokpal in effect will be the investigator, prosecutor and enforcer of its will. When coupled with the powers to punish for contempt and in the absence of an appellate body the draft bill in fact creates a gigantic institution that draws its powers from a statute that is based on questionable principles.

 Extracted from notes presented at a public consultation on the Lokpal Bill at the Nehru Memorial Museum and Library on April 16.  Justice Shah retired from the Delhi high court in 2010. Nayak is co-convenor of the National Campaign for People’s RTI

JAN LOKPAL BILL

Indian Parliament Building Delhi India

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INDIA AGAINST CORRUPTION/ NEW DELHI

Salient features of Jan Lokpal Bill

  1. An institution called LOKPAL at the centre and LOKAYUKTA in each state will be set up
  2. Like Supreme Court and Election Commission, they will be completely independent of the governments. No minister or bureaucrat will be able to influence their investigations.
  3. Cases against corrupt people will not linger on for years anymore: Investigations in any case will have to be completed in one year. Trial should be completed in next one year so that the corrupt politician, officer or judge is sent to jail within two years.
  4. The loss that a corrupt person caused to the government will be recovered at the time of conviction.
  5. How will it help a common citizen: If any work of any citizen is not done in prescribed time in any government office, Lokpal will impose financial penalty on guilty officers, which will be given as compensation to the complainant.
  6. So, you could approach Lokpal if your ration card or passport or voter card is not being made or if police is not registering your case or any other work is not being done in prescribed time. Lokpal will have to get it done in a month’s time. You could also report any case of corruption to Lokpal like ration being siphoned off, poor quality roads been constructed or panchayat funds being siphoned off. Lokpal will have to complete its investigations in a year, trial will be over in next one year and the guilty will go to jail within two years.
  7. But won’t the government appoint corrupt and weak people as Lokpal members? That won’t be possible because its members will be selected by judges, citizens and constitutional authorities and not by politicians, through a completely transparent and participatory process.
  8. What if some officer in Lokpal becomes corrupt? The entire functioning of Lokpal/ Lokayukta will be completely transparent. Any complaint against any officer of Lokpal shall be investigated and the officer dismissed within two months.
  9. What will happen to existing anti-corruption agencies? CVC, departmental vigilance and anti-corruption branch of CBI will be merged into Lokpal. Lokpal will have complete powers and machinery to independently investigate and prosecute any officer, judge or politician.
  10. It will be the duty of the Lokpal to provide protection to those who are being victimized for raising their voice against corruption.

Deficiencies in the present anti-corruption systems

Central Government level:

At central Government level, there is Central Vigilance Commission, Departmental vigilance and CBI. CVC and Departmental vigilance deal with vigilance (disciplinary proceedings) aspect of a corruption case and CBI deals with criminal aspect of that case.

Central Vigilance Commission: CVC is the apex body for all vigilance cases in Government of India.

  • However, it does not have adequate resources commensurate with the large number of complaints that it receives. CVC is a very small set up with a  staff strength less than 200. It is supposed to check corruption in more than 1500 central government departments and ministries, some of them being as big as Central Excise, Railways, Income Tax etc. Therefore, it has to depend on the vigilance wings of respective departments and forwards most of the complaints for inquiry and report to them. While it monitors the progress of these complaints, there is delay and the complainants are often disturbed by this.  It directly enquires into a few complaints on its own, especially when it suspects motivated delays or where senior officials could be implicated. But given the constraints of manpower, such number is really small.
  • CVC is merely an advisory body. Central Government Departments seek CVC’s advice on various corruption cases. However, they are free to accept or reject CVC’s advice. Even in those cases, which are directly enquired into by the CVC, it can only advise government. CVC mentions these cases of non-acceptance in its monthly reports and the Annual Report to Parliament. But these are not much in focus in Parliamentary debates or by the media.
  • Experience shows that CVC’s advice to initiate prosecution is rarely accepted and whenever CVC advised major penalty, it was reduced to minor penalty. Therefore, CVC can hardly be treated as an effective deterrent against corruption.
  • CVC cannot direct CBI to initiate enquiries against any officer of the level of Joint Secretary and above on its own. The CBI has to seek the permission of that department, which obviously would not be granted if the senior officers of that department are involved and they could delay the case or see to it that permission would not be granted.
  • CVC does not have powers to register criminal case. It deals only with vigilance or disciplinary matters.
  • It does not have powers over politicians. If there is an involvement of a politician in any case, CVC could  at best bring it to the notice of the Government. There are several cases of serious corruption in which officials and political executive are involved together.
  • It does not have any direct powers over departmental vigilance wings. Often it is seen that CVC forwards a complaint to a department and then keeps sending reminders to them to enquire and send report. Many a times, the departments just do not comply. CVC does not have any really effective powers over them to seek compliance of its orders.
  • CVC does not have administrative control over officials in vigilance wings of various central government departments to which it forwards corruption complaints. Though the government does consult CVC before appointing the Chief Vigilance Officers of various departments, however, the final decision lies with the government. Also, the officials below CVO are appointed/transferred by that department only. Only in exceptional cases, if the CVO chooses to bring it to the notice of CVC, CVC could bring pressure on the Department to revoke orders but again such recommendations are not binding.
  • Appointments to CVC are directly under the control of ruling political party, though the leader of the Opposition is a member of the Committee to select CVC and VCs. But the Committee only considers names put up before it and that is decided by the Government. The appointments are opaque.
  • CVC Act gives supervisory powers to CVC over CBI. However, these supervisory powers have remained ineffective. CVC does not have the power to call for any file from CBI or to direct them to do any case in a particular manner. Besides, CBI is under administrative control of DOPT rather than CVC.
  • Therefore, though CVC is relatively independent in its functioning, it neither has resources nor powers to enquire and take action on complaints of corruption in a manner that meets the expectations of people or act as an effective deterrence against corruption.

Departmental Vigilance Wings: Each Department has a vigilance wing, which is manned by officials from the same department (barring a few which have an outsider as Chief Vigilance Officer. However, all the officers under him belong to the same department).

  • Since the officers in the vigilance wing of a department are from the same department and they can be posted to any position in that department anytime, it is practically impossible for them to be independent and objective while  inquiring into complaints against their colleagues and seniors. If a complaint is received against a senior officer, it is impossible to enquire into that complaint because an officer who is in vigilance today might get posted under that senior officer some time in future.
  • In some departments, especially in the Ministries , some  officials double up as vigilance officials. It means that an existing official is given additional duty of vigilance also. So, if some citizen complaints against that officer, the complaint is expected to be enquired into by the same officer. Even if someone complaints against that officer to the CVC or to the Head of that Department or to any other authority, the complaint is forwarded by all these agencies and it finally lands up in his own lap to enquire against himself. Even if he recuses himself from such inquiries , still they have to be handled by those who otherwise report to him. There are indeed examples of such absurdity.
  • There have been instances of the officials posted in vigilance wing by that department having had a very corrupt past. While in vigilance, they try to scuttle all cases against themselves. They also turn vigilance wing into a hub of corruption, where cases are closed for consideration.
  • Departmental vigilance does not investigate into criminal aspect of any case. It does not have the powers to register an FIR.
  • They also do not have any powers against politicians.
  • Since the vigilance wing is directly under the control of the Head of that Department, it is practically impossible for them to enquire against senior officials of that department.
  • Therefore, , the vigilance wing of any department is seen to softpedal on genuine complaints or  used to enquire against ” inconvenient” officers.

CBI: CBI has powers of a police station to investigate and register FIR. It can investigate any case related to a Central Government department on its own or any case referred to it by any state government or any court.

  • CBI is overburdened and does not accept cases even where amount of defalcation is alleged to be around Rs 1 crore.
  • CBI is directly under the administrative control of Central Government.
  • So, if a complaint pertains to any minister or politician who  is part of a  ruling coalition or a bureaucrat who is close to them, CBI’s credibility  has suffered and there is increasing public perception that  it cannot do a fair investigation and that it is influenced to  to scuttle these cases.
  • Again, because CBI is directly under the control of Central Government, CBI is perceived to have been often  used to settle scores against inconvenient politicians.

Therefore, if a citizen wants to make a complaint about corruption by a politician or an official in the Central Government, there isn’t a single anti-corruption agency which is effective and independent of the government, whose wrongdoings are sought to be investigated. CBI has powers but it is not independent. CVC is independent but it does not have sufficient powers or resources.

Existing System System Proposed by

civil society

No politician or senior officer ever goes to jail despite huge evidence because Anti Corruption Branch (ACB) and CBI directly come under the government. Before starting investigation or initiating prosecution in any case, they have to take permission from the same bosses, against whom the case has to be investigated. Lokpal at centre and Lokayukta at state level will be independent bodies. ACB and CBI will be merged into these bodies. They will have power to initiate investigations and prosecution against any officer or politician without needing anyone’s permission. Investigation should be completed within 1 year and trial to get over in next 1 year. Within two years, the corrupt should go to jail.
No corrupt officer is dismissed from the job because Central Vigilance Commission, which is supposed to dismiss corrupt officers, is only an advisory body. Whenever it advises government to dismiss any senior corrupt officer, its advice is never implemented. Lokpal and Lokayukta will have complete powers to order dismissal of a corrupt officer. CVC and all departmental vigilance will be merged into Lokpal and state vigilance will be merged into Lokayukta.
No action is taken against corrupt judges because permission is required from the Chief Justice of India to even register an FIR against corrupt judges. Lokpal & Lokayukta shall have powers to investigate and prosecute any judge without needing anyone’s permission.
Nowhere to go – People expose corruption but no action is taken on their complaints. Lokpal & Lokayukta will have to enquire into and hear every complaint.
There is so much corruption within CBI and vigilance departments. Their functioning is so secret that it encourages corruption within these agencies. All investigations in Lokpal & Lokayukta shall be transparent. After completion of investigation, all case records shall be open to public.  Complaint against any staff of Lokpal & Lokayukta shall be enquired and punishment announced within two months.
Weak and corrupt people are appointed as heads of anti-corruption agencies. Politicians will have absolutely no say in selections of Chairperson and members of Lokpal & Lokayukta. Selections will take place through a transparent and public participatory process.
Citizens face harassment in government offices. Sometimes they are forced to pay bribes. One can only complaint to senior officers. No action is taken on complaints because senior officers also get their cut. Lokpal & Lokayukta will get public grievances resolved in time bound manner, impose a penalty of Rs 250 per day of delay to be deducted from the salary of guilty officer and award that amount as compensation to the aggrieved citizen.
Nothing in law to recover ill gotten wealth. A corrupt person can come out of jail and enjoy that money. Loss caused to the government due to corruption will be recovered from all accused.
Small punishment for corruption- Punishment for corruption is minimum 6 months and maximum 7 years. Enhanced punishment – The punishment would be minimum 5 years and maximum of life imprisonment.

 

Critique of Government’s Lokpal Bill 2010

(Proposed to be passed as an ordinance by the Central government)

UPA government has been under constant attack due to exposure of one scam after the other on the issue of corruption. In order to salvage its image, the government proposes to set up an institution of Lokpal to check corruption at high places. However the remedy seems to be worse than the disease. Rather than strengthening anti corruption systems, this bill if passed, will end up weakening whatever exists in the name of anti corruption today.

The principal objections to government’s proposal are as follows:

  1. Lokpal will not have any power to either initiate action suo motu in any case or even receive complaints of corruption from general public. The general public will make complaints to the speaker of Lok Sabha or chairperson of Rajya Sabha. Only those complaints forwarded by Speaker of Lok Sabha/ Chairperson of Rajya Sabha to Lokpal would be investigated by Lokpal. This not only severely restricts the functioning of Lokpal, it also provides a tool in the hands of the ruling party to have only those cases referred to Lokpal which pertain to political opponents (since speaker is always from the ruling party). It will also provide a tool in the hands of the ruling party to protect its own politicians.
  2. Lokpal has been proposed to be an advisory body. Lokpal, after enquiry in any case, will forward its report to the competent authority. The competent authority will have final powers to decide whether to take action on Lokpal’s report or not. In the case of cabinet ministers, the competent authority is Prime Minister. In the case of PM and MPs the competent authority is Lok Sabha or Rajya Sabha, as the case may be. In the coalition era when the government of the day depends upon the support of its political partners, it will be impossible for the PM to act against any of his cabinet ministers on the basis of Lokpal’s report. For instance, if there were such a Lokpal today and if Lokpal made a recommendation to the PM to prosecute A. Raja, obviously the PM will not have the political courage to initiate prosecution against A. Raja. Likewise, if Lokpal made a report against the PM or any MP of the ruling party, will the house ever pass a resolution to prosecute the PM or the ruling party MP? Obviously, they will never do that.
  3. The bill is legally unsound. Lokpal has not been given police powers. Therefore Lokpal cannot register an FIR. Therefore all the enquiries conducted by Lokpal will tantamount to “preliminary enquiries”. Even if the report of Lokpal is accepted, who will file the chargesheet in the court? Who will initiate prosecution? Who will appoint the prosecution lawyer? The entire bill is silent on that.
  4. The bill does not say what will be the role of CBI after this bill. Can CBI and Lokpal investigate the same case or CBI will lose its powers to investigate politicians? If the latter is true, then this bill is meant to completely insulate politicians from any investigations whatsoever which are possible today through CBI.
  5. There is a strong punishment for “frivolous” complaints. If any complaint is found to be false and frivolous, Lokpal will have the power to send the complainant to jail through summary trial but if the complaint were found to be true, the Lokpal will not have the power to send the corrupt politicians to jail! So the bill appears to be meant to browbeat, threaten and discourage those fighting against corruption.
  6. Lokpal will have jurisdiction only on MPs, ministers and PM. It will not have jurisdiction over officers. The officers and politicians do not indulge in corruption separately. In any case of corruption, there is always an involvement of both of them. So according to government’s proposal, every case would need to be investigated by both CVC and Lokpal. So now, in each case, CVC will look into the role of bureaucrats while Lokpal will look into the role of politicians. Obviously the case records will be with one agency and the way government functions it will not share its records with the other agency. It is also possible that in the same case the two agencies arrive at completely opposite conclusions. Therefore it appears to be a sure way of killing any case.
  7. Lokpal will consist of three members, all of them being retired judges. There is no reason why the choice should be restricted to judiciary. By creating so many post retirement posts for judges, the government will make the retiring judges vulnerable to government influences just before retirement as is already happening in the case of retiring bureaucrats. The retiring judges, in the hope of getting post retirement employment would do the bidding of the government in their last few years.
  8. The selection committee consists of Vice President, PM, Leaders of both houses, Leaders of opposition in both houses, Law Minister and Home minister. Barring Vice President, all of them are politicians whose corruption Lokpal is supposed to investigate. So there is a direct conflict of interest. Also selection committee is heavily loaded in favor of the ruling party. Effectively ruling party will make the final selections. And obviously ruling party will never appoint strong and effective Lokpal.
  9. Lokpal will not have powers to investigate any case against PM, which deals with foreign affairs, security and defence. This means that corruption in defence deals will be out of any scrutiny whatsoever. It will become impossible to investigate into any Bofors in future.

Therefore, the draft Lokpal ordinance is eyewash, a sham. It is sad that despite so much of embarrassment caused to UPA due to so many scams, UPA is still making a fool of the people in the form of this draft ordinance.

Redefining torture

"Torture Is Wrong" Sign At The Inter...

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V. VENKATESAN IN THE FRONTLINE

The Rajya Sabha Select Committee‘s report attempts to correct some of the distortions in the Prevention of Torture Bill, 2010

THE Report of the Select Committee on the Prevention of Torture Bill, 2010, presented to the Rajya Sabha on December 6 has been hailed as a significant step forward in undoing the injustice caused by the hasty passage of the Bill without any debate in the Lok Sabha last year.

The Central government introduced the Bill in the Lok Sabha on April 26, 2010, to allow India to ratify the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The Lok Sabha passed it on May 6. The passage of the Bill, with members expressing no concern about its inability to prevent torture, disappointed human rights activists.

However, the Rajya Sabha adopted a motion on August 31 referring the Bill to a Select Committee, comprising 13 of its members, for examination. Chaired by Ashwani Kumar of the Congress, the committee included E.M. Sudarsana Natchiappan of the Congress and Brinda Karat of the Communist Party of India (Marxist). The committee held nine sittings and met the inmates of Tihar Jail, New Delhi, who had suffered torture at the hands of the police. It also heard the views of human rights activists and legal experts before finalising the report. The committee’s recommendations merit sincere consideration by the government, especially in the light of the fact that eminent members of civil society have serious misgivings about the Bill.

The foremost of these is the very objective of the Bill, which was conceived merely as an enabling piece of legislation to ratify CAT. The United Nations General Assembly adopted CAT on December 9, 1975. India signed the Convention on October 14, 1997, when I.K. Gujral was the Prime Minister. To ratify the Convention, it was necessary for a member-country to enact enabling domestic legislation. The short-lived Gujral government could not pave the way for its ratification. And Gujral’s successors, Atal Bihari Vajpayee and Manmohan Singh (during his first term), had no political will to propose such legislation.

When the Manmohan Singh government, in its second term, introduced such a Bill in Parliament, its sudden change of heart surprised observers. A close scrutiny of the Bill, however, revealed that the government was more interested in symbolic conformity with the requirement of ratification rather than substantive compliance with CAT. India is one of the few countries that have not yet ratified CAT, and the inordinate delay in doing so appears to have eroded its moral standing within the international community. However, India’s credibility would have suffered a serious dent if the Rajya Sabha too had passed the Bill as done by the Lok Sabha.

Restrictive provisions

The Bill seeks to provide punishment for torture inflicted by public servants or for torture with the consent or acquiescence of a public servant. As the Indian Penal Code (IPC) neither defines nor deals with torture, Clauses 3 and 4 of the Bill aim to fill this gap. Activists and experts find these provisions very restrictive. According to the Bill, to amount to torture, an act must either cause grievous hurt or must cause mental or physical danger to life, limb or health. Article 1 of CAT, however, defines torture as “severe pain or suffering whether physical or mental”. The Working Group on CAT interpreted the word “severe” to mean “prolonged coercive and abusive conduct which, in itself, is not severe but becomes so over a period of time”.

 

The Pre-Legislative Briefing Service (PLBS), a group of young legal experts consulted by the Rajya Sabha Select Committee, pointed out in its report that acts that in themselves may not constitute torture become so by reason of their repeated application. The PLBS pointed out that the term “grievous hurt” set the bar too high, without any recourse for persons suffering slightly less but still severe hurt. In particular, it brought to the committee’s attention the following examples of severe hurt for which a police officer would be punishable under the IPC under Section 330 (dealing with ordinary hurt) but not under the torture Bill:

i) Stubbing a cigarette on the body of a person several times;

ii) Whipping a person with various instruments;

iii) Causing a person severe pain that lasts for less than 20 days.

In order to include many instances of torture within its ambit, the PLBS suggested that the words “grievous hurt” and “danger to life, limb or health” be replaced with “severe pain or suffering” in line with CAT. The Select Committee has accepted its suggestion and recommended that the definition of torture be suitably enlarged so as not to exclude acts generally known to be committed on persons in custody which cause severe physical and mental injury, pain, trauma, agony, and so on.

The committee is of the view that the definition of torture should not only be consistent with that of CAT but should also be enlarged to include specific and serious offences against the human body as enumerated in the IPC.

Anomaly in the Bill

 

The PLBS also revealed another anomaly in the Bill. Clauses 3 and 4 of the Bill indicate that only the person who actually committed the act of torture be punished. This implies that a public servant who abets, consents, acquiesces or conspires in an act of torture cannot be punished under the Bill. It “incentivises and legitimises the outsourcing of torture to private parties and provides the impunity for the public servant who planned or directed the torture,” the PLBS reported. The Select Committee appears to have missed this subtle distinction between a public servant who commits torture and the one who simply abets or attempts it, and the need to punish both.

The Select Committee, however, has recommended that the definition of public servants should be enlarged to include those employed in government companies or any institution or organisation, including educational institutions under the control of the Union and State governments.

The committee has recommended that a minimum punishment of three years be provided to make the law more deterrent. Similarly, it has proposed that a minimum fine of Rs.1 lakh be imposed on the torturer. The Bill does not provide for any minimum punishment for torture, thus leaving the scope for lesser punishments not consistent with the gravity of the offence of torture.

The committee has also made recommendations for suitable provisions in the Bill to rehabilitate victims of torture. It feels the Bill should indicate guidelines to be followed to arrive at a fair and adequate compensation to the victim, and in case of death, to his or her dependants.

The Bill implies that an act of torture is not punishable unless it is committed for the purpose of extracting a confession and on the grounds of religion, race, and so on, of the victim. The PLBS suggested that the conjunctive clause “and” was inappropriate because it had the effect of making a narrow definition of punishable torture. The PLBS suggested that an act of torture committed by a public servant – in his public capacity – must be punishable regardless of the reason for which that act was committed. The Select Committee has not found it necessary to deal with these suggestions.

Clause 5 of the Bill states that no court shall take cognisance of torture unless the complaint is made within six months from the date on which the offence is alleged to have been committed. The PLBS suggested that this clause be deleted, as the limitation period of six months imposed an arbitrary restriction on cognisance of cases relating to torture by courts. The Standing Committee, however, has recommended that a liberal limitation period of two years from the date on which the alleged offence was committed for filing of the complaint would give sufficient time to enable the victim of torture to initiate proceedings against those responsible for torture. The committee has also considered it necessary to vest the discretion with the court to entertain complaints even beyond the period of two years so as to advance the ends of substantive justice.

Clause 6 of the Bill requires prior sanction for the prosecution of a public servant accused of torture. The committee feels that there is a need to retain the provision of prior sanction of a competent authority before proceeding against the public servant concerned so as to insulate honest public servants from false, frivolous, vexatious and malicious prosecution. At the same time, the committee has opined that such a provision should not be used to shield those officials who have, in fact, intentionally tortured or abetted the torture of individuals.

It, therefore, has recommended a provision in the Bill under which if the requested sanction is not granted within a period of three months from the date of application, it would be deemed to have been granted. This, the committee hopes, will help ensure that the right of the victim is not lost owing to procedural delays and he is not made to run from pillar to post to get justice.

The committee has recommended that sanction in blatant cases of torture should be the norm and where sanction to prosecute is declined, the said decision should be supported by reasons, and the decision must also be appealable. The committee also wants the trial of offences under the Bill to be concluded within one year from the date of cognisance of the offence. It has urged Parliament to include in the Bill suitable provisions to protect victims, complainants and witnesses.

Observers wonder whether the government will revise the Bill in the light of the Standing Committee’s significant recommendations.

http://www.frontlineonnet.com/stories/20110211280304000.htm


MPs , lobbyists: The dividing line

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PUBLISHED IN THE TRIBUNE CHANDIGARH

As the matter has serious ramifications for parliamentary democracy, there is need for a national debate, says Subhash C. Kashyap

Union Minister of State for Environment and Forests (Independent charge) Jairam Ramesh recently wrote to the Lok Sabha Speaker and the Rajya Sabha Chairman raising some vital issues involving the conduct of Members of Parliament.

He complained that some of them were acting as lobbyists, either to promote the interests of their own concerns or for others. The Minister pointed out how his own Ministry was sought to be pressurised by some members to further certain interests. The matter has serious ramifications and calls for a national debate. That such things happen has always been widely suspected but the Minister’s allegations are vague, in very general terms and not actionable. If anything, they tend to further erode the falling respect and esteem of the people for their own elected representatives. It is very much like some academics and social activists alleging that all politicians are corrupt and source of all our societal ills.

Perhaps, the hangover of Mr Ramesh’s own academic past got the better of him to make such remarks. Unless the precise names are given and specific instances cited with proper documentation and evidence, no meaningful action can be expected to follow the Minister’s epistles to the Presiding Officers of Parliament.

In all fairness to the Members of Parliament and parliamentary institutions, the Minister must come forward with facts and details of the information in his possession so that appropriate action under the Constitution, laws and rules of the Houses can be initiated to ensure that our elected representatives – Members of Parliament – do not degenerate into serving their own personal or family business interests or becoming power brokers, middlemen, influence-peddlers, liaison men, commission agents or lobbyists for vested interests.

One view that is advanced and debated is that Members of Parliament work under tremendous pressure. They are approached by many people for help as their legitimate communication links with Parliament and the government. Often, the members have got to write to the Ministers. It should be entirely the responsibility of the Minister to have the matters examined and decisions taken on merits.

This would not be an appropriate approach. Communications from the Members of Parliament are entitled to due respect in the chambers of Ministers. But, that also casts a tremendous responsibility on the shoulders of the members. They should not blindly sign any missives to Ministers. As for members trying to directly influence government officials, that is entirely impermissible. In some quarters, it is advocated that in the context of economic liberalisation and free market policies adopted by us, lobbying should be accepted as an essential concomitant and legalised on the US pattern.

In the United States, for instance, almost every interest group has its lobbyist on the Capitol Hill to protect and promote its interests in the portals of the US Congress and in the government. The lobbyists have to be registered under the Registration of Lobbies Act. The lobbyists interact with the members of the Congress and build pressure groups to influence policy in the interest of their clients. Sometimes these pressure groups and lobbies play a more potent role in policy formulation, legislation and implementation than even the political parties. No wonder, the lobbyists in the US are some of the most highly paid people.

Here again, our situation in many respects and our polity are very different from the United States. In the context of vast sections of our people still suffering from poverty, backwardness and deprivation, it would not at all be possible in foreseeable future to have lobbyists for all interest groups. Any law permitting lobbying would only legitimise and promote some of the most unfair practices including payment of bribes and commissions. The lobbyists would become the middlemen. The dividing line between a lobbyist and a broker is very thin.

In our parliamentary system, several procedural devices are available to members to seek information from the Ministers and to raise matters of public importance in the parliamentary fora. Every member is a Member of Parliament of India. He cannot be confined to concerns of his constituency. He can raise matters of concern to any or every part of the nation and pertaining to the public interest of any section of the people.

However, if a Member of Parliament has any personal, direct or pecuniary interest in any matters coming up before the House or a Committee of which he is a member, he is expected to inform the Speaker/Chairman of his interest in advance of his taking part in the proceedings concerned.

Under Rule 255 in the Lok Sabha, objection may be taken to the inclusion of a member in a Committee on the ground that the member has a personal, pecuniary or direct interest of such an intimate character that it may prejudicially affect the consideration of any matters to be considered by the Committee.

If the Speaker holds that the member, against whose appointment objection has been taken, has a personal, pecuniary or direct interest in the matter before the Committee, he shall cease to be a member thereof forthwith.

For purposes of this rule, the interest of the member should be direct, personal or pecuniary and separately belong to the person whose inclusion in the Committee is objected to and not in common with the public in general or with any class or section thereof or on a matter of state policy. There have been several instances where action has been actually taken by the Speaker.

Under Lok Sabha Rule 371, vote of a Member on the floor of the House may be challenged on the ground of personal, pecuniary or direct interest in the matter. The Speaker shall decide whether the vote of the member should be disallowed.

Norms of Parliamentary Decorum and Etiquette to be followed by Members are contained in the code of conduct which is part of the Rules of the House (Rules 349 to 359 and Directions 115A and 115C, Lok Sabha). But, this largely covers the members conduct in the matter of the maintenance of parliamentary decorum in the proceedings of the House.

Besides, under the law of parliamentary privileges flowing from Article 105 of the Constitution, any misconduct in the presence of the House or a Committee thereof, including that by members themselves, constitutes contempt of the House. Members found guilty of such contempt can be punished by admonition, reprimand, suspension from membership for a particular period, commitment to prison or even expulsion from the House.

Members generally are expected to conduct themselves in a manner that they maintain the dignity of the House to which they belong and not to indulge in any conduct unbecoming of Members of Parliament or inconsistent or derogatory to the dignity of the House. Thus, it is considered the duty of each member to refrain from any course of action prejudicial to his privilege of freedom of speech in the House. It is irregular for a member to enter into any contractual agreement with an outside body, controlling or limiting his complete independence and freedom of action in Parliament.

The extent and amplitude of the words “conduct of a member” have not been defined exhaustively, but it is within the powers of the House in each case to determine whether a member has acted in an unbecoming manner or has acted in a manner unworthy of a Member of Parliament.

Thus, even though the facts of a particular case do not come within any of the recognised heads of breach of privilege or contempt of the House, the conduct of a member may be considered by the House as unbecoming and derogatory to the dignity of the House.

The first such case which is often cited occurred as early as in 1951 during the Provisional Parliament period. The House decided on September 24, 1951, that the conduct of a member (H.C. Mudgal) in undertaking to canvass “support” and to make “propaganda in Parliament” on behalf of the Bombay Bullion Exchange, in return for financial or business advantages, was “derogatory to the dignity of the House and inconsistent with the standard which Parliament is entitled to expect from its Members”. The House by a resolution determined that Mudgal deserved expulsion from the House.

During the Eighth Lok Sabha (1985-89), 96 notices of questions relating to drug manufacturing companies, their products and formulations for different dates were received from seven members. From the format, language and typing of those questions, it appeared that the source of all of them was the same and they appeared to be rather sponsored questions to lobby for or against certain multinational drug companies.

The questions, instead of asking information, gave information and no public interest appeared to be involved. It also appeared that the medium of question procedure was being abused and, therefore, was violative of Rule 43 (1). All these notices were disallowed.

Again, a large number of questions relating to drug manufacturing companies, their products and formulations from almost the same set of members were received. Except a few which were found admissible on merit and were accordingly admitted, all other questions were disallowed. Some of the members represented against disallowance of their questions. These members were asked to see the Speaker. Only one member turned up. He was told by the Speaker to desist from accepting questions from private companies indiscriminately and without personal scrutiny.

More recently, during the Fourteenth Lok Sabha period, in a sensational expose on camera, ten Members of Lok Sabha and one Member of Rajya Sabha were shown on TV as accepting money for asking questions in Parliament. Acting swiftly, the Chairman of Rajya Sabha suspended the member and referred the matter to the Ethics Committee of the House. The Lok Sabha Speaker asked the ten MPs not to attend the House till the matter was settled and he appointed a Special five-member Committee. Within a week, the two committees reported – both holding the members guilty and recommending expulsion from their respective Houses. On December 23, 2005, motions were passed in the two Houses expelling all the 11 members from their respective Houses for conduct lowering the dignity and credibility of Parliament.

There are many established parliamentary customs and conventions which a member has to make himself familiar with. These customs and conventions are based on the past precedents, the rulings of Presiding Officers and on the unrecorded traditions of Parliament. These are put together in a Handbook for Members of Parliament and inter alia include:

Information given to members in confidence or by virtue of their being members of Parliamentary Committees should not be divulged to anyone nor used by them directly or indirectly in the profession in which they are engaged, such as in their capacity as editors or correspondents of newspapers or proprietors of business firms and so on.

A member should not try to secure business from the government for a firm, company or organisation with which he is directly or indirectly concerned.

A member should not give certificates which are not based on facts.

A member should not unduly influence the government officials or the Ministers in a case in which he is interested financially either directly or indirectly.

A member should not receive hospitality of any kind for any work he desires or proposes to do from a person or organisation on whose behalf the work is to be done by him.

A member should not in his capacity as a lawyer or a legal adviser or a counsel or a solicitor appear before a Minister or an executive officer exercising quasi-judicial powers.

A member should verify the facts before proceeding to take action on behalf of his constituents.

A member should not elicit any official information in an unauthorised manner by inducing a government employee to give information to him which in the course of his normal functions he should not give, nor encourage any such person to speak to him against his senior officials on matters of public importance and policy.

A member should not write recommendatory letters or speak to government officials for employment or business contacts for any of his relations or other persons in whom he is directly or indirectly interested.

The Members of Parliament should not take action on behalf of their constituents on some insufficient or baseless facts or without verifying the veracity of facts nor should they allow themselves to be used as ready supporters of individual grievances. If the legislator feels that the cause is just and legitimate but the normal channels would get delayed justice, he can approach the civil servant concerned and bring the matter to his notice, but with decorum and in a manner not in any way amounting to pressurising or exercising undue influence.

The conduct of a member involving corruption in the execution of his office as a member is treated by the House as a breach of privilege. Thus, acceptance of any fee, compensation or reward in connection with the promotion of or opposition to any Bill, resolution or matter submitted or proposed to be submitted to the House or any Committee thereof is a breach of privilege. It would also be a breach of privilege and misconduct on the part of a member to enter into an agreement with another person for any reward to advocate and prosecute in the House the claims of such person.

The Handbook also provides details of the appropriate procedure for members communicating with Ministers, whom to write for seeking information, for complaining etc.

So far as the present missives by Minister Ramesh to the Speaker and Chairman are concerned, presumably, he would be asked to substantiate his allegations with specific references to the names of Members and details of their attempts to influence him or his Ministry officials.

If that is done, it would be a fit case for further action and can be referred to the Ethics Committee or the Privileges Committee of the House concerned or even a Special Committee may be constituted to inquire and report to the House.

The House can then discuss the report and decide upon appropriate action to be taken against the members found guilty of conduct unbecoming of Members of Parliament.

If any bribery or other corrupt practice violative of any law including the Indian Penal Code, the Prevention of Corruption Act etc. is involved, the members can also be hauled up by the law enforcement agencies of the state and proceeded against like any other citizen. In the new atmosphere of the dawn of some political will to take action, one can hope for the best and remain prepared for the worst.

In all fairness to the Members of Parliament and parliamentary institutions, the Union Environment Minister must come forward with details of the information in his possession so that appropriate action under the Constitution, laws and rules of the Houses can be initiated to ensure that our elected representatives – Members of Parliament – do not degenerate into serving their own personal or family business interests or becoming power brokers, middlemen, influence-peddlers, liaison men, commission agents or lobbyists for vested interests

If any bribery or other corrupt practice violative of any law is involved, the Members of Parliament can be hauled up by the law enforcement agencies of the state and proceeded against like any other citizen

The writer, a noted constitutional expert, is a former Secretary-General of the Lok Sabha

http://www.tribuneindia.com/2011/20110109/edit.htm#1

Undermining Parliament won’t do

Indian Parliament Building Delhi India

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A TRIBUNE CHANDIGARH SPECIAL

Neither the Opposition nor the Government has the right to disrupt the session over any issue, says Subhash C. Kashyap

in recent weeks, we have witnessed so many scandals in high places to the tune of lakhs of crores of public money that we must bow our heads in shame. Disturbingly, the 2G spectrum allocation, the Commonwealth Games, the Adarsh Society and the Niira Radia tapes reveal only the tip of the iceberg. Much more is hidden below the surface.

Parliament, as the supreme representative institution of the people, ought to take serious note of the challenges to our polity posed by the giant scamsters. Members rising above party lines should have deliberated upon ways to quickly identify and punish the guilty and devise systemic reforms to prevent recurrence of such scams.

From day one, the winter session of Parliament has been rendered dysfunctional. The only business it transacted during three weeks was a sham and a disgrace. Supplementary Demands and Appropriation Bills for thousands of crores were passed without any debate by a voice vote amid din. There could be no better evidence of the low levels to which the MPs’ respect for Parliament and public money has descended. The basic issues of large-scale corruption have receded to the backstage and much of the focus is on the long logjam.

The Opposition members were united in demanding a Joint Parliamentary Committee (JPC) for examining the three big scams. They are firm on disrupting Parliament unless this was agreed to. The government is equally firm on its stand that the Public Accounts Committee (PAC) is the appropriate forum for deliberating on financial accounts and the report of the Comptroller and Auditor-General (CAG). In any case, all matters could be discussed in Parliament. The government also offered a CBI probe under the Supreme Court’s supervision.

The Minister of Parliamentary Affairs says that the JPC demand is purely political and illogical. First, if the demand is political, its rejection by the government was equally so. Secondly, Parliament is primarily a political institution meant inter alia for debating political issues. ‘Political’ cannot mean unreasonable or illegitimate. Thirdly, there were compulsions of coalition politics. Some problems arose when for government formation in case of a hung Lok Sabha, a price had to be paid to coalition partners/ supporters, bargains had to be struck and the price demanded had to be paid in the form of creamy portfolios like Telecom.

In such a situation, corruption is inbuilt in government formation. It was known to the Prime Minister and others. It was understood and accepted as unavoidable in the best interests of power polities. Even former Telecom Minister A. Raja’s resignation became possible only after counter pressure and promise of support from a rival provincial satrap.

The Opposition felt that the JPC canvas could be vast while PAC probe would be limited in nature and the Ministers could not be summoned before it. As for the CBI inquiry under the Supreme Court, it was very legitimately wondered how the government could make such an offer or interfere with juridical functions and court’s discretion.

The Opposition asked what was so sinister about demanding a JPC probe. After all, during the NDA regime in 2001, a JPC was quickly conceded by the Prime Minister to probe the Stock Market Crash Scam and related issues. Former Finance Minister Yashwant Sinha, P. Chidambaram and Manmohan Singh as also the Finance Secretary appeared before the JPC. A report was made and its recommendations were largely accepted.

The Opposition disowned responsibility for making Parliament dysfunctional. It asserted that it was the government’s job to make Parliament function. But, as a logical conclusion, it would mean the use of disciplinary powers of the Presiding Officers and the Houses and suspension of members obstructing the proceedings and committing breach of parliamentary privilege and contempt of the Houses.

All the efforts made by the troubleshooters and party managers at all-party luncheon meetings have failed to break the deadlock and evolve a compromise. This was a clear failure of political and floor management skills of the government. The Speaker’s last ditch effort, too, failed.

Clearly, both the government and the Opposition are equally responsible for the ugly impasse. There was an unnecessary, illegitimate and irrational tug of war in the name of the people. But the people are nowhere in the picture. As usual, on both sides, political considerations and calculations of gain and loss have the upper hand. Perhaps, there is an unsaid long-term political concern before the government and the Opposition. Both are eyeing the 2014 general elections. The Opposition would like to drag the matter on through the JPC device and the Congress feared a repeat of what happened to it after the JPC on Bofors.

The people are appalled and dismayed at the shameful levels and reach of corruption involving the UPA-II government headed by Prime Minister Manmohan Singh and advised by the all powerful National Advisory Council. But the Opposition has done precious little to explain to ‘we, the people’ why it insisted on disrupting the proceedings of both Houses. The government also has failed to convince the concerned citizens about the justification, if any, for its unrelenting opposition to conceding the near-unanimous Opposition demand. It is also feared that deliberate dilly dallying on the JPC demand would help one to fudge records and buy and manage evidence. As Parliament has been paralysed, some of the talking was being done through blogs or television channels. The people needed to be informed about parliamentary processes, relevance and respective merits of parliamentary committees. Friends from the media kept enquiring this writer about the difference between a JPC and PAC.

It would have been better to use Parliament to talk to the people and educate them through debates about the arguments of both sides. The Opposition leaders could place all the facts and arguments most forcefully and plead for the appointment of a Joint Committee of the two Houses. The government side could also justify its stand. The people could then form their opinion though in a parliamentary system while the Opposition has the right to have its say, the government, so long as it is in majority, has its way.

Parliament is the chief communication link between the government and the people. Close contact and an intimate rapport between the two is the quintessence of parliamentary democracy. Parliament belongs to the people and not to MPs or parties. People must have access to Parliament. Unfortunately, there is a tremendous disconnect between the two. Things get worse when both Houses do not function and are shut against the people.

If the Opposition was anxious to question the Prime Minister and nail his responsibility, the Lok Sabha was the more effective and legitimate forum than a JPC. However, in a JPC, proceedings are in camera. Interestingly, the nomenclature JPC finds no mention in any constitutional or legal provisions or in the Rules of Procedure and Conduct of Business in the two Houses of Parliament. The term gained currency during and after the inquiry into the Bofors scandal in 1987.

The device of parliamentary committees is intended to assist the Houses of Parliament in the efficient discharge of their functions. There are two types of Parliamentary Committees in India: Standing Committees and Ad hoc Committees. Standing Committees are constituted by the House or the Speaker every year or from time to time and are permanent in nature. Ad hoc Committees are appointed for a specific purpose.

Standing Committees include the Financial Committees and Departmentally Related Committees. Ad hoc committees may be Select or Joint Committees or those constituted to report on specific matters. A committee which consists of members of both Houses is a Joint Committee. The Standing Financial Committee called the Public Accounts Committee is also a joint committee inasmuch as the Rajya Sabha MPs are also associated with it. All the Departmentally Related Standing Committees are Joint Committees.

Both Houses of Parliament have inherent powers to appoint special committees under special circumstances to examine and inquire into specific issues and report to the Houses. Apart from the Standing Committees, Ad hoc joint committees of both Houses have been constituted from time to time on various matters. Technically, these were JPCs. It is, therefore, not correct to say that the JPC on Bofors was the first JPC or that there have been only four JPCs so far. Also, it is incorrect to say that the four JPCs were total failures. A committee can only inquire and make recommendations. It is for Parliament to discuss them and for the government to accept them and take appropriate action.

After Bofors, the nomenclature JPC has in practice come to connote an ad hoc joint committee of both Houses formed for inquiring into a specific scandal of financial wrong doing. A distinctive feature of such committees is their investigatory role. Of the oft-cited four such investigative committees in the past, the first was in 1987 on the Bofors scandal. After crusading for it and blocking Parliament for long, the Opposition boycotted the JPC on the ground that it was packed by Congress members. Even though the Opposition boycotted the JPC on Bofors, its inquiry led to mass resignation of Opposition members and ultimately the change of the government. The Union Cabinet itself was split with V.P. Singh putting himself up as an anti-corruption Messiah.

The second JPC was formed in 1992 to investigate the Securities Stock Scam involving Harshad Mehta and other brokers. Parliament was largely paralysed for two weeks before the JPC was conceded. The third was set up in 2001 to investigate the Shares scam involving Ketan Parekh, banks and corporate Houses. From March 13, 2001, Parliament was paralysed for nine days after the Tehelka expose. In April, after another week of adjournments, the Opposition Congress demanded a JPC. On the issue of irregularities in defence purchases during the Kargil conflict, it again demanded a JPC. These demands were rejected. The political parties demand JPC when in the opposition and oppose it when in the government.

A joint committee may be appointed on a motion adopted by the two Houses and may contain the names of its members. It may also be appointed by the Speaker of Lok Sabha and the Chairman of the Rajya Sabha after mutual consultation. Members of some Standing Committees including the Public Accounts Committee are elected according to the system of proportional representation by means of single transferable vote. This may be so even in the case of some ad hoc committees. But even if the committees are constituted by the presiding officers, proportional representation of parties is kept in view and the numbers in committees represent the party position in the Houses, i.e. by and large the ruling party or parties remain in majority in the committees as well. In case of the PAC, by convention, the Chairman has been from the Opposition since 1967.

The Comptroller and Auditor-General of India is an independent audit agency. To the extent that the executive is accountable to Parliament in financial maters, the CAG works as the watchdog on behalf of Parliament. Parliament’s effective functioning depends largely on the CAG’s assistance who is considered its friend and guide.

In the present case, the CAG had done his job and his report was laid before the two Houses. It had unearthed a major scam and pointed out blatant and substantial irregularities causing a loss of Rs 1.76 lakh crore to the public exchequer. Without a public and transparent auction, the 2G spectrum licences were given away to companies with doubtful credentials in 2008 at throwaway prices by former Telecom Minister A. Raja. Two companies which had bought the licences for Rs 1500 and Rs 1600 crore, after a few weeks, sold their stakes for Rs 12,000 crore!

In parliamentary committees, the effort always is to function on non-party lines. Decisions are taken unanimously or by consensus but the rules provide for all questions at any sitting of a committee being taken “by a majority of votes of the members present and voting.” On crucial issues involving party susceptibilities, therefore, it would not be easy for the Opposition to have its way against the government. It may be, therefore, wrong for the Opposition to believe that they would be able to compel the presence of the Prime Minister or other Ministers before the JPC. The majority in the committee may overrule such suggestions. Also, under the rules, the question may be “referred to the Speaker whose decision shall be final.”

In the PAC, a minister is not called before it to give evidence or for consultation in connection with the examination of accounts. A minister may appear before it if the Chairman agrees. Also it can be so arranged between the Speaker, the Committee Chairman and the minister concerned that he appears on his own.

If the Opposition can be convinced that it should not appear to be stalling the proceedings of the House and the government realises that it need not be seen as avoiding inquiry, there may be a way out of the present impasse whereby the concerned ministers and even the Prime Minister may appear before the PAC. The committee can also go beyond the CAG report and take suo motu notice of allied issues. This would only require an initiative and a promise from the Prime Minister himself.

The Opposition had a golden opportunity to draw maximum political advantage by providing good leadership, clean citizen-friendly governance and inclusive politics. They could make corruption a major issue and launch a massive campaign against it through speeches in Parliament instead of disrupting it and sipping coffee in the Central Hall.

Meanwhile, the Supreme Court has asked the CBI counsel not to beat about the bush when illegality was prima facie evident. It has castigated the CBI for tardy investigation and asked why Mr A. Raja and then Telecom Secretary P.J. Thomas (currently the Chief Vigilance Commissioner) have not been questioned. It has also questioned the legitimacy of Mr Thomas’ appointment on the ground of pending charges against him and his controversial role as Telecom Secretary.

The saddest part of the current debate in the media and among the pro-establishment pseudo-liberal intellectuals is that there is no willingness to call a spade a spade and condemn wrong doing. Cheating by those in power is countered and defended by pointing fingers at similar cheating by the Opposition parties when they were in power. Party ‘A’ accuses Party ‘B’ of swindling public money and vice versa. The blame game continues while the losers are we, the aam admi.

The Opposition pressure, the Supreme Court’s observations and the public outcry against corruption are beginning to impact the government inasmuch as notices have at last been issued to companies asking them why their 2G spectrum licences should not be cancelled. If Mr Thomas doesn’t quit voluntarily, there may be a strong case for seeking annulment of his appointment as mala fide and ab initio illegal and void.

The ultimate question is whether the political class — the largest beneficiaries of corruption — has at last realised that enough is enough and the people won’t accept the sordid state of affairs anymore.

The writer, a noted constitutional expert, is a former Secretary-General, Lok Sabha

http://www.tribuneindia.com/2010/20101205/edit.htm#1