Mercy plea or Lokayukta: Can Prez and guv act in personal capacity?

Canon outside the entrance to Rashtrapati Bhaw...

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DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

Recent decisions by constitutional heads – rejection of mercy petitions in the Rajiv Gandhi assassination case by the President and the Gujarat governor’s decision to appoint Lokayukta – have caused debates both on constitutional and political lines.

The Constitution vests sovereign power in the President and governors. Governance in the Centre and states are carried out in their name. But they do not have unbridled power to decide mercy petitions in exercise of exclusive powers conferred on them under Articles 72 and 161. They have to act in aid and advice of the council of ministers, both at the Union and state levels, as have been held conclusively by the SC. The SC had grudgingly agreed with Justice Oliver Wendel Holmes, who had said, “Pardon is not a private act of grace from an individual happening to possess power. It is part of a constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”

So, the President by rejecting the mercy pleas has, on the aid and advice of the Union council of ministers, come to the conclusion that public welfare would not be served by reducing the punishments awarded to the convicts. The Constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction. But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.

Now, it is in the process of examining whether there should be a time limit for deciding mercy petitions, which keep pending for years inflicting mental torture on condemned prisoners awaiting their day. The question of the President and governors, conferred with wide powers under the Constitution, acting in their own capacity without consulting the elected government came in for wide discussion in Shamsher Singh case [1975 SCR (1) 814].

A 7-judge constitution bench was amused by the ingenious arguments by a counsel supporting vesting of discretionary powers with President and governors to step around the SC’s consistent view that India has accepted the Cabinet form of government.

The counsel argued – wherever the Constitution has expressly vested powers in the President or the governors, they belong to them alone and cannot be handled on their behalf by ministers under the relevant rules of business. It is similar to the arguments justifying Gujarat governor Kamla Beniwal‘s decision to appoint Lokayukta without consulting the chief minister.

The SC had answered this question by saying, “How ambitious and subversive such an interpretation can be to parliamentary (and popular) authority unfolds itself when we survey the wide range of vital powers so enunciated in the Constitution. Indeed, a whole host of such Articles exist in the Constitution, most of them very vital for the daily running of the administration and embracing executive, emergency and legislative powers either of a routine or momentous nature.”Discussing the governors, the court said they had “power to grant pardon or to remit sentence, the power to make appointments including of the chief minister, the advocate general, district judges, members of the public service commission”.

It listed such kind of power vested in the President – supreme commander of the armed forces, appointment of judges of the SC and HCs, power to dismiss a state government under Article 356 and an entire army of public servants who continue in service at the pleasure of the President. If President and governors acted on their own, then parliamentary democracy “will become a dope and national elections a numerical exercise in expensive futility”, the court had warned.

The 7-judge bench said if this was true of Indian Constitution and the system of governance, then “we will be compelled to hold that there are two parallel authorities exercising powers of governance of country, as in the dyarchy days, except Whitehall is substituted by Rashtrapati Bhawan and Raj Bhawan. The Cabinet will shrink in political and administrative authority”.

It said such a distortion “would virtually amount to a subversion of the structure, substance and vitality of our Republic, particularly when we remember that governors are but appointed functionaries and the President himself elected on a limited indirect basis”.

Irrespective of who gets appointed and who gets pardon, let politicians not introduce politics into the constitutional scheme, the thread that keeps the country united. In case of Gujarat, there is a difference- the statute clearly provided that Lokayukta will be appointed by the governor in consultation with the chief justice of the HC. The Modi government can amend the statute, which on Shamsher Singh judgment logic, appears untenable. But as long as it is there, why does the BJP want the Modi government to have primacy in Lokayukta appointment but grandstands for an independent process for Lokpal?

http://timesofindia.indiatimes.com/india/Mercy-plea-or-Lokayukta-Can-Prez-and-guv-act-in-personal-capacity/articleshow/9866312.cms

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Beware of the Government Lokpal Bill

Arvind Kejriwal

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APPEAL BY ARVIND KEJRIWAL ON BEHALF OF INDIA AGAINST CORRUPTION AND ANNA HAZARE

I reviewed the Government.s Lokpal bill in great detail. I am deeply concerned and not to mention alarmed with what I learned from it. Government has completely ignored the wishes of the common man and made a mockery of our hard fought struggle for strong anti-corruption laws. I have summarized the most troubling aspects of the government version here and suggested possible steps that everyone of you can take to help in this movement.

We had been demanding that an institution called Lokpal should be set up for central government and a Lokayukta should be set up for each state government through the same Bill. Lokpal would receive and investigate corruption complaints against central government employees and politicians. Lokayukta would do that job in respective states. However, the Cabinet has rejected our demand. Only a few senior-most officers in central government have been brought within the jurisdiction of Lokpal. All officials and politicians in state governments have been left out.

What does that mean?

  • It means that rampant corruption in Panchayat works would continue as it is. Through the use of RTI Act, many people across the country have revealed how payments are routinely made for ghost works. Check dams exist only on paper. List of beneficiaries of various government schemes contain bogus names. Wages of poorest people are denied and siphoned off under NREGA. Social audits in several states have exposed corruption running into thousands of crores in NREGA. Medicines are routinely diverted to black market from government hospitals. Teachers do not turn up in government schools. They pay a part of their salaries to Basic Shiksha Adhikari to mark their attendance. 80% of Rs 30,000 crores of ration subsidy is siphoned off. People living below poverty line are turned away by ration shopkeepers because their rations are diverted to black market. Much of this money reaches the party coffers or the senior-most politicians. All this will continue even after the enactment of government.s Lokpal Bill because all of this is outside its jurisdiction.
  • In cities, roads would continue to break after a few months of being constructed. Flyovers would continue to collapse. Streetlights will still not light up. Parks would continue to remain dilapidated. The builders would continue to fleece ordinary consumers. You would still need to pay bribes to get your passport or income tax refund. Building plan will not be passed without a bribe. Government.s Lokpal Bill does not cover any of this.
  • Adarsh Housing scam is not covered under Government.s Lokpal. Reddy brothers will continue to loot our mines and minerals. Commonwealth Games, Fodder scam, Taj Corridor Scam, Yamuna Expressway scam, Jharkhand Mukti Morcha scam, Cash for vote scam . none of these scams are covered under Government.s Lokpal Bill.
  • Members of Parliament and MLAs would continue to take bribes to ask questions or vote in Parliament and legislative assemblies because Lokpal would not have the powers to investigate them.
  • Prime Minister, Chief Ministers, MPs, MLAs, municipal councilors, sarpanches, judges, all state government employees, all Group B, Group C and group D employees of the central government . all are out of the jurisdiction of Government.s Lokpal Bill.
  • Interestingly, if any citizen makes a complaint of corruption against any official to Lokpal and if it lacks adequate evidence, then as per government.s bill, the citizen would face two years of minimum imprisonment. And the government would provide a free advocate to the corrupt official to file a case against the citizen. But if the citizen is able to prove that the official has indeed indulged in corruption, there is just six months of minimum imprisonment. Therefore, rather than the corrupt and corruption, the government bill is targeted against those who dare raise their voice against corruption. In short, it discourages people from reporting acts of corruption!
  • 13 people, who had dared to raise their voice against corruption, were murdered in the last one year. We had demanded that Lokpal should have the powers and duty to provide protection to such people. Government Bill does not have any such provision.
  • Government has retained its control over CBI. So, CBI would continue to avoid taking action against a future Raja until Supreme Court admonished them. Accounts of Quattrochis would continue to be defrozen in secrecy against national interests. CBI would continue to be used to arm twist Mayawatis, Laloo Yadavs, Jayalalithas and Mulayam Singhs into submission. Corruption money would continue to be siphoned off to Swiss accounts.
  • Government.s Lokpal Bill is also unconstitutional. Prime Minister does not enjoy any immunity from investigations under the constitution. Exclusion of Prime Minister from Lokpal Bill is unconstitutional.
  • Selection and removal of Lokpal members will be completely in the control of the government. Out of 9 member selection committee, five will be from ruling establishment, thus effectively giving powers in the hands of the government to appoint the most corrupt, pliable and politically loyal people as Lokpal members.
  • High Courts and Supreme Court would continue to take more than 20 years to dispose appeals in corruption cases because our plea to set up special benches to hear such appeals has also been turned down.

Government says that there are 1.25 crore government employees in the country. Government refuses to bring them under Lokpal Bill because it would need large number of anti-corruption staff to keep a check on them. Isn.t that an absurd excuse? India is a huge country. Obviously, it has large number of employees. Can the government leave them unchecked and allow them to loot the people and the country? Under law, corruption is a crime . as heinous as murder or rape. If tomorrow, the incidence of murders or rapes increases as much as we have corruption now, would the government turn around and say that this country has 120 crore population and since they would need large number of policemen to check crime, they would not do it?

The country seems to be in the clutches of highly corrupt people. It has been reported that in the Cabinet Meeting, the Prime Minister, including some of his other Cabinet colleagues, kept pleading that PM be included within the Lokpal Bill. However, the corrupt within the Cabinet had the last say. The Prime Minister was rendered helpless, though one wonders the reasons for his helplessness.

What are our options? Some people feel that Anna is unreasonable. They say that an indefinite fast is a brahmastra and should be used as a last resort. Haven.t we already reached the end of the road?

Friends, I must confess that the road ahead is extremely challenging. Government is on a path to try and crush the movement at any cost. We need the active participation of every single Indian in order to fight back. If the Government.s bill becomes law we are literally gifting our country to the corrupt people to further plunder our resources.

Like I have said before its now or never.

Let every citizen in this country take one week.s off from his normal work from 16th August, the day Anna starts his indefinite fast, and take to the streets . in front of his house or at the crossings or in parks . with a tricolor in his hands shouting slogans against corruption. Let students take off from their schools and colleges. Let everyone take to streets. If this happens, we will achieve our goal within a week. Government can crush one Anna but it cannot crush 120 crore Annas. Government can impose section 144 on one jantar mantar. But it cannot impose a curfew on the whole country.

Can we count on you support to participate in one final attempt to save our country from the corrupt?

Arvind Kejriwal

India Against Corruption (IAC)
http://www.indiaagainstcorruption.org
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To learn more about Lokpal please see:
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OFFICIAL LOKPAL BILL AS SUBMITTED TO LOK SABHA

History of deception

A.G. NOORANI in  FRONTLINE

The 1985 Lokpal Bill destroyed the raison d’etre of the institution of an ombudsman, but all successive governments copied it.

PUBLIC anger was understandably aroused over the gross delay by Parliament in the last 40 years to enact a Lokpal Bill and with the toothless one that the government sponsored. It is not widely known that the delay was aggravated by deception and fraud in 1985. It was, however, emulated by almost all governments that came later. One does not grudge any of those who rushed to Jantar Mantar to grab a few minutes’ fame before TV cameras. Tinsel town, predictably, did not go unrepresented. If the cause had stirred them earlier, their disquiet remained their best preserved secret. One cannot expect Anna Hazare to study – or, for that matter, care for – the nitty-gritty of the law. Some of those who could have known ought to have spoken earlier loud and clear.

The Lokpal Bill was one of the three planks in the movement launched by Jayaprakash Narayan 40 years ago to eradicate corruption. The other two were electoral reforms, designed particularly to end the play of money power, and an effective anti-defection law. JP did not jump into the fray all of a sudden, still less did he resort to theatricals. He studied the problems, deliberated on solutions, and consulted a wide range of persons – lawyers, academics, activists, and so on. He consulted, in particular, the Lokayukta of Maharashtra, Justice S.P. Kotval, who was a former Chief Justice of the Bombay High Court.

JP expounded his views in a seminal article entitled “How to check the canker of corruption” in Everyman’s, a weekly he founded, in the issue of September 1, 1973. It was edited by the late Ajit Bhattacharjea. He recalled the recommendation of the Santhanam Committee on Corruption that “[if] a formal allegation is made by any 10 members of Parliament or a legislature in writing addressed to the Prime Minister or Chief Minister, through the Speakers and Chairmen, the Prime Minister or Chief Minister should consider himself obliged, by convention, to refer the allegations for immediate investigations by a committee…”.

He recalled also the Tamil Nadu Public Men Inquiry Act, 1973. Its definitions of “public man” included the Chief Minister, but its definition of “criminal misconduct” was confined to bribery or illicit acquisitions by abuse of power. M.G. Ramachandran was a member of the Joint Select Committee that considered the Bill. But, of course, as we all know the law completely succeeded in banishing the evil of corruption from Tamil Nadu for all time to come. Corruption simply does not exist in Tamil Nadu today.

Jay Prakash Naryan

Jay Prakash Naryan

JP dwelt, next, on a document that had set the ball rolling. “The Administrative Reforms Committee had recommended in October 1966 the institution of the office of a Lokpal at the Centre and of Lokayukta in the States with wide statutory powers. For reasons that are not clear, the Government of India took over 18 months to make up its mind; and it was only on the 9th May 1968 that the Lokpal Bill was first introduced in Parliament. It was passed by the Lok Sabha in August 1969, but it made no further progress owing perhaps to the power struggle that was brewing within the Congress then and that burst out into the open in September 1969.…

“It was only after Indiraji’s great electoral victory in 1971 that the Lokpal Bill was re-introduced in the new Parliament on 11th August 1971. Many spectacular Acts have been passed since the victory, such as the Constitutional Amendments Acts, but the Lokpal Bill, in its own way more important than the others, has been languishing until today. This and the other delays and omissions… suggest a deplorable lack of any sense of urgency on the part of the Government of India in dealing with a cancerous disease not only of the body politic but of the nation as a whole.”

Unlike some today, JP knew that no Lokpal could wield the magic wand. He wrote: “Let me not create the impression that the appointment of a Lokpal and Lokayuktas will in itself cure the disease of corruption so rampant among Ministers and civil servants. This is not the place to go into the question, but if the Lokpal Bill and the Maharashtra Ayukta Act, which is claimed to be patterned after the former, were carefully scrutinised, it would be discovered that the action of these vital officers is severely limited and hemmed in by restrictive provisions. It is in many ways a case of giving by one hand and taking away by the other… a fertile and well-known source of corruption at the State level, which embraces MLAs, local party functionaries and even Ministers, is the matter of transfers, postings and promotions of subordinate and higher government servants of all departments. Not only is this a source of corruption, but it also occupies most of the time of the Ministers.”

Anna Hazare, in contrast, asserts that the Lokpal Bill “will put the brakes on corruption in the country and help reduce the gap between the poor and the rich” ( The Hindu, April 17). It is a man of such colossal self-assurance and naivety who leads the movement. Kotval’s first Annual Report, for the period from October 25, 1972, to October 24, 1973, lists the crippling restrictions on the Lokayukta’s powers.

The interim report of the Administrative Reforms Commission (ARC) on “Problems of Redress of Citizens’ Grievances” initiated the discussion in the country. The ARC was headed by Morarji Desai. Its emphasis was on the redress of citizens’ grievances for maladministration even if there was no breach of the law. This was based on Scandinavia’s Ombudsman, who is essentially a parliamentary institution rather like India’s Comptroller and Auditor General (CAG). Speaking to the All India Congress Committee (AICC) in Jaipur on November 3, 1963, Prime Minister Jawaharlal Nehru said that while the ombudsman system fascinated him, he felt that in a big country like India, the introduction of such a system was beset with difficulties. But then, Nehru was never enamoured of inquiries into charges of corruption, anyway.

THE FACSIMILE OF an order issued by the Government of Kerala on the "setting up of an Interim Machinery to enquire into allegations against Public Men".

THE FACSIMILE OF an order issued by the Government of Kerala on the "setting up of an Interim Machinery to enquire into allegations against Public Men".

Paragraph 25 of the ARC’s report said: “The following would be the main features of the institutions of Lokpal and Lokayukta: (a) They should be demonstrably independent and impartial. (b) Their investigations and proceedings should be conducted in private and should be informal in character. (c) Their appointment should, as far as possible, be non-political. (d) Their status should compare with the highest judicial functionaries in the country. (e) They should deal with matters in the discretionary field involving acts of injustice, corruption or favouritism. (f) Their proceedings should not be subject to judicial interference and they should have the maximum latitude and powers in obtaining information relevant to their duties. (g) They should not look forward to any benefit or pecuniary advantage from the executive government.”

Appended to the report was a Draft Bill which covered (clause 7) both, “injustice in consequence of maladministration” and favouritism and corruption.

The British Parliamentary Commission Act, 1967, covered maladministration alone [5.5(1)]. The first concrete step for the appointment of an ombudsman institution in India came with the introduction of the Lokpal Bill in the Lok Sabha on May 9, 1968, to implement the recommendations of the ARC. The Bill was referred to a joint committee and was later passed by the Lok Sabha (August 20, 1969). But while it was pending in the Rajya Sabha, the Lok Sabha was dissolved, and the Bill consequently lapsed. The Bill was again introduced in the Lok Sabha on August 11, 1971. It lapsed on the dissolution of that Lok Sabha, the fifth, in 1977.

A Bill on Lokpal was introduced in the sixth Lok Sabha on July 28, 1977. The report of the joint committee, incorporating certain amendments in the Bill, was placed before the Lok Sabha on January 20, 1978. However, before the Bill could be adopted by Parliament, the Lok Sabha was dissolved, in July 1979, and the Bill lapsed. None was considered by the seventh Lok Sabha elected in 1980.

The format of the two Bills of 1971 and 1977 was abandoned and deformities were injected into the Bill introduced in the Lok Sabha on August 26, 1985. It was withdrawn on November 15, 1988, on specious grounds after the Joint Parliamentary Committee (JPC) which debated it had been sent on a merry-go-round in 23 States at government expense “from Shimla to Trivandrum and from Panjim to Port Blair”. But it was this deformed Bill that was adopted as a model by all successive governments with little noise from any of the ones who made noises at Jantar Mantar.

To the Bills of 1971 (based on the first Bill of 1968) and of 1977 we must now turn. The 1971 Bill empowered the Lokpal to inquire into both a “grievance” and an “allegation”. These terms are of crucial importance, for they constitute the raison d’etre of the Lokpal.

A grievance was defined as a claim by a person that he had “sustained injustice or undue hardship in consequences of maladministration”. The term “allegation” was defined to cover not only “corruption or lack of integrity” but also abuse of public office to secure gain or to cause harm or hardship to another. It included, no less, action motivated by “improper” motives. In sum, the Lokpal was empowered to investigate a large variety of improper acts even if they did not constitute corruption under the Prevention of Corruption Act, 1947.

The 1977 Bill altogether omitted from its scope grievances about maladministration since a separate machinery was contemplated to entertain such complaints. However, it widened the area of the Lokpal’s jurisdiction in respect of charges of improper behaviour by defining “misconduct” in the widest terms. To the provisions of the 1971 Bill, in respect of abuse of office and conduct actuated by improper motives, it added two more ingredients which bear recalling.

They are: “if he (the public man) directly or indirectly allows his position as such public man to be taken advantage of by any of his relatives or associates and by reason thereof such relative or associate secures any undue gain or favour to himself or to another person or causes harm or undue hardship to another person (Explanation: for the purposes of this clause, associate in relation to a public man includes any person in whom such public man is interested); or if he fails to act in any case otherwise than in accordance with the norms of integrity and conduct which ought to be followed by the class of public men to which he belongs.” The 1971 Bill excluded the Prime Minister; the 1977 Bill included him.

The 1977 Bill was moved by the Janata Party government, in which Shanti Bhushan was the Law Minister. It was sponsored by Home Minister Charan Singh, who had, as Chief Minister of Uttar Pradesh, got promulgated on October 21, 1967, the Uttar Pradesh Public Men Inquiries Ordinance. It covered “any imputation of misconduct” against a serving or past Minister, legislator and members of local bodies and so on. Under it, the government would have no power to prevent an investigation or inquiry from being held if required by any person; it would have no hand in the selection of judges; and the investigating agency would be completely insulated from the influence of the government.

The scheme provided that any person could make a complaint of misconduct to the Governor against a present or past holder of any of the offices specified. He would be required to file an affidavit in support of the complaint and deposit a security of Rs.1,000. The Governor would then request the Chief Justice of the High Court to nominate a judge to conduct a preliminary scrutiny and eventually order a fuller one by a commission of inquiry. The judge could even order the Chief Investigator to prosecute the offender.

No Bill in recent history has been so badly mauled by the JPC as the Lokpal Bill of 1977 was. It was headed by Shyam Nandan Mishra, who was to win undying fame later as Foreign Minister. The Bill had defined “misconduct” to include, besides corruption, failure to act in any case otherwise than in accordance with the norms of integrity and conduct which ought to be followed by the class of public men to which he belongs”. The JPC considered this to be “too wide and is, therefore, likely to be amenable to different interpretations”.

This was disingenuous. Section 45 of the Army Act of 1950 makes it an offence for any officer, Junior Commissioned Officer or Warrant Officer, to behave “in a manner unbecoming his position and the character expected of him”. Section 35 of the Advocates Act, 1961, renders an advocate liable to disciplinary proceedings if he has been guilty of “professional or other misconduct”. Also, the JPC felt that since MPs “do not exercise any executive powers they should not be treated at par with other public men exercising such powers”. Therefore, the concept of “misconduct” for them should be different. The report had notes of strong dissent. The Bill lapsed on the dissolution of the Lok Sabha in July 1979. Indira Gandhi had no use for any such law when she returned to power in January 1980. Rajiv Gandhi had a go at it. The Bill that his Law Minister, A.K. Sen, a man for all seasons, moved in the Lok Sabha on August 26, 1985, departed radically from the models of 1971 and 1977 and set up, in effect, a parallel quasi-judicial body with its remit confined solely to the criminal offence of bribery under the Indian Penal Code or the Prevention of Corruption Act, 1947.

The Bill introduced in the Lok Sabha by V.P. Singh’s government on December 29, 1989, was an exact replica of the Rajiv Gandhi government’s Bill except for two changes. The Prime Minister was explicitly covered, and reference to the IPC and the Prevention of Corruption Act of 1947 was replaced by reference to the Prevention of Corruption Act, 1988.

This destroys the raison d’etre of the institution. It is designed to help people who have been badly treated even if no law is breached. It is meant also to cover abuse of power and misdemeanours or misconduct even if they do not constitute offences under the law. Since courts exist to try offences under the IPC and the Prevention of Corruption Act of 1988, why set up a parallel body?

THE LOKPAL BILL, first introduced in Parliament in 1968, was reintroduced after Indira Gandhi came to power in 1971. The Bill came up during the tenures of a succession of Prime Ministers, but most governments that came after Rajiv Gandhi's retained the clause that made the intended legislation a caricature of the institution of ombudsman. Here (from left), Indira Gandhi, Morarji Desai, Rajiv Gandhi.

THE LOKPAL BILL, first introduced in Parliament in 1968, was reintroduced after Indira Gandhi came to power in 1971. The Bill came up during the tenures of a succession of Prime Ministers, but most governments that came after Rajiv Gandhi's retained the clause that made the intended legislation a caricature of the institution of ombudsman. Here (from left), Indira Gandhi, Morarji Desai, Rajiv Gandhi.

The sinister purpose behind this appeared in clause 24 of the 1985 Bill, which read thus: “Notwithstanding anything contained in any other law for the time being in force, where on an inquiry in respect of a complaint against a public functionary the Lokpal or the competent authority has held that any allegations made in the complaint have not been proved or substantiated, no prosecution shall lie on any complaint, report, information or otherwise and no court shall take cognisance of any offence on the basis of the same or substantially the same allegations as in the complaint.” In other words, a Lokpal probe, skilfully initiated, would bar prosecution in the courts altogether.

No such provision existed either in the 1971 Bill or in the 1977 Bill. However, it was faithfully copied in the V.P. Singh government Bill as clause 23.

The 1971 Bill covered both grievances in respect of maladministration and allegations of misconduct. The 1977 Bill was confined to “misconduct” alone, albeit defined in modest terms to cover abuse of power and improprieties as well as corruption.

The 1985 Bill omitted grievances of maladministration as well as charges of misconduct and restricted the jurisdiction severely to matters which are for the courts to decide – criminal offences as defined in the IPC and the Prevention of Corruption Act.

Having thus restricted the Lokpal’s jurisdiction, the 1985 Bill sought to exclude the criminal courts’ jurisdiction as well. And not only if the Lokpal exonerated the Minister but also if, disagreeing with his findings, the Prime Minister chose to exonerate his colleague. For, clause 24 referred to the results of an inquiry by “the Lokpal or the competent authority”. And who was this “competent authority”? Clause 2(a) said it “means the Prime Minister”. The whole thing was a fraud.

Nonetheless, each of the succeeding governments, headed by V.P. Singh, H.D. Deve Gowda, Inder Kumar Gujral and Atal Bihari Vajpayee, sponsored and supported in Parliament a Lokpal Bill which it very well knew to be a caricature of the institution of the ombudsman as it is known in the world over and as was known in this country before 1985. A monstrous fraud was perpetrated on the country in 1985 and perpetuated thereafter.

Here (from left) V.P. Singh, H.D. Deve Gowda and Atal Bihari Vajpayee.

Here (from left) V.P. Singh, H.D. Deve Gowda and Atal Bihari Vajpayee.

An ombudsman does not preside over a parallel judiciary to try offences under the Prevention of Corruption Act, 1988. The courts of law take care of that. To confer such a jurisdiction on the Lokpal and oust that of the courts is to confer immunity from the law to men in high office. For, unlike the courts, the Lokpal has no power to award punishment at all. It can do no more than report to a designated superior of the delinquent – the Prime Minister vis-a-vis Union Ministers. Worse still is to confine its jurisdiction to trial of offences and exclude from it just those kinds of cases for which the institution of an ombudsman has been devised and set up for decades the world over; namely, acts which do not constitute offences in law and for which the courts can provide no redress. Maladministration and abuse of power are classic instances of such acts.

The Bills of September 10, 1996 (H.D. Deve Gowda regime), of July 23, 1998 (A.B. Vajpayee regime), and of July 9, 2001 (A.B. Vajpayee regime) all studiously copied Rajiv Gandhi’s (or A.K. Sen’s) Bill of 1985 and confined the Lokpal’s remit to corruption as defined in the Prevention of Corruption Act of 1988. In each case an anaemic Lokpal could do no more than report to the Prime Minister, while ousting the court’s jurisdiction effectively by a parallel judiciary of sorts. L.K. Advani, needless to mention, was Deputy Prime Minister in the Vajpayee government.

In glaring contrast, a mere executive order of December 20, 1969, made by the Government of Kerala to set up “an Interim Machinery to enquire into allegations against public men” proved effective. It defined “misconduct” to include any act which is actuated “by improper or corrupt motives”. Judges who sat on commissions of inquiry defined the term “azhimathi” to cover a whole range of improprieties. (The Karnataka Lokayukta Act, 1984, also included in the Lokayukta’s remit the failure “to act in accordance with the norms of integrity and conduct which ought to be followed by public servants of the class to which he belongs” [S 2 (2) (d)].

Kerala’s Order of 1969 was superseded by the Kerala Public Men (Prevention of Corruption) Act, 1983, the Kerala Public Men’s Corruption (Investigations and Inquiries) Act 1987, and finally by the Kerala Lok Ayukta Act, 1999. It covers both lack of integrity and “injustice”. This Lokayukta has the power to order public servants, including the Chief Minister, to vacate office (Section 11) and to initiate a prosecution (Section 12).

If a Lokpal is to be worthwhile, the selected person must (1) have jurisdiction in respect of both maladministration and misconduct; (2) be appointed by a procedure that excludes executive influence and control. The Chief Justice of India and the Leader of the Opposition in the Lok Sabha must be on the selection panel along with the Prime Minister; (3) be a former judge of the Supreme Court or a former Chief Justice of a High Court; (4) have jurisdiction over a wide range of “public men” – the Prime Minister, MPs, senior civil servants, heads of public corporations and national universities, and so on; (5) have an independent investigating agency of his own and not be dependent on the Central Bureau of Investigation; (6) have the power to launch prosecutions himself and order vacating of office; (7) be easily accessible; (8) have a juridical personality. It would be best to amend the Constitution to give him constitutional status comparable to that of the CAG.

Jan Lokpal bill: addressing concerns

Indian Parliament Building Delhi India

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Prashant Bhushan in THE HINDU

The draft bill seeks to create an institution that will be independent of those it seeks to police, and will have powers to investigate and prosecute all public servants, and others found guilty of corrupting them.

A number of commentators have raised issues about the provisions in the draft of the Jan Lokpal Bill. They have asked whether it would be an effective instrument to check corruption. They have pointed to the manner in which Anna Hazare‘s fast put pressure on the government. It is therefore important to understand the provisions of the bill and how it seeks to set up an effective institution to deal with corruption.

Corruption in India has grown to alarming proportions because of policies that have created enormous incentives for its proliferation, coupled with the lack of an effective institution that can investigate and prosecute the corrupt. Under the garb of liberalisation and privatisation, India has adopted policies by which natural resources and public assets (mineral resources, oil and gas, land, spectrum, and so on) have been allowed to be privatised without transparency or a process of public auctioning. Almost overnight, hundreds of memorandums of understanding (MoUs) have been signed by governments with private corporations, leasing out large tracts of land rich in mineral resources, forests and water. These allow the corporations to take away and sell the resources by paying the government a royalty, which is usually less than 1 per cent of the value of the resources.

The Karnataka Lokayukta, Justice Santosh Hegde, has pointed out in a report on mining in Karnataka that the profit margins in such ventures are often more than 90 per cent. This leaves huge scope for bribe-giving and creates incentives for corruption. The same thing happened when A. Raja gave away spectrum without a public auction to companies at less than 10 per cent of its market price. Private monopolies in water and electricity distribution, airport development and so on have been allowed to be created, where huge and unconscionable levels of profit can be made by corrupting the regulator and allowing private monopolies to charge predatory prices. Tens of thousands of hectares have been given away to corporations for commercialisation in the guise of airport development, construction of highways, creation of Special Economic Zones and so on, at prices that are less than 10 per cent of the value of those tracts of land.

Apart from creating huge incentives for corruption, such policies have resulted in the involuntary displacement of lakhs of the poorest people, leaving them on the brink of starvation and forcing many of them to join the Maoists. The beneficiaries have stripped the land of natural resources (a good deal of which is exported) and destroyed the environment. Most ominously, such deals have resulted in the creation of monster corporations that are so powerful and influential that they have come to influence and virtually control all institutions of power — as we see from the Radia tapes.

While adopting policies that thus create huge incentives for corruption, we have not set up effective institutions to check corruption, investigate and prosecute the corrupt and bring them to justice. The Central Bureau of Investigation (CBI) continues to be under the administrative control of the government, which is seen as the fountainhead of corruption. Thus, no action is usually taken by the CBI to effectively investigate high-level corruption — except once in a while when the court forces its hand. Often we see the CBI itself behaving in a corrupt manner, with no other institution to investigate that. The Central Vigilance Commission (CVC), which is supposed to supervise the CBI, has failed to act, since its own appointment process is riddled with conflicts of interest. The Prime Minister, the Home Minister and the Leader of the Opposition (who has been a Minister and hopes to become Prime Minister one day) want to avoid their own accountability and are thus interested in having weak and pliable persons to man the institution that is expected to supervise the CBI. Moreover, the CVC and the CBI have to seek the government’s sanction to investigate and prosecute wrongdoers; such sanction is usually not given when it comes to high-level corruption. The CVC depends on vigilance officers in various government departments. They are often middle-level officers from the same departments and cannot be expected to exercise vigilance over their bosses who write their confidential reports. The judiciary, which must try and convict the offenders, has become dysfunctional and is afflicted with corruption due to lack of accountability of the higher judiciary.

The draft Jan Lokpal bill seeks to create an institution that will be largely independent of those it seeks to police, and which will have effective powers to investigate and prosecute all public servants (including Ministers, MPs, bureaucrats, judges and so on) and others found guilty of corrupting them. Since corruption involves misconduct and gives rise to grievances, the draft proposes that the Lokpal will supervise the machinery to pursue disciplinary proceedings against government servants (the Vigilance Department) as well as the machinery to redress grievances. Thus, misconduct by government servants, and grievances, will come under the ambit of an independent authority rather than the government — where the machinery has become ineffective due to conflicts of interest. It is proposed that if the Lokpal finds that a contract is being given for corrupt considerations, it can stop the contract. It cannot otherwise interfere with government decisions or policy.

It has been said that this would create a super-cop with enormous powers and no accountability. There is a misconception that the proposed Lokpal will have judicial powers; there is no such provision in the bill. The need of the hour is to have an effective cop who can investigate and prosecute the high and mighty without interdiction from the very people who need to be prosecuted.

The bill seeks to make the Lokpal accountable. First, it is mandated to function transparently so that everything related to its functioning is known to the people (without compromising the investigation itself). Exemptions from disclosure provided in the Right to Information Act could be included. Secondly, the Lokpal’s orders will be subject to review in the High Courts and the Supreme Court. Lastly, the members of the Lokpal could be removed for misconduct, by a five-member bench of the Supreme Court.

There has been some criticism of the Lokpal selection committee and the selection process. Given the erosion in the integrity of most of our state institutions, it was thought that the best bet would be to have a broad-based selection committee and build transparency and public participation into the selection process, while trying to keep out those who are most likely to be within the ambit of the Lokpal’s investigations. That is why in the draft bill Ministers were sought to be kept out.

One criticism has been that this shows contempt for democracy. We have seen how the “democratically elected” Prime Minister, Home Minister and leaders of the opposition have normally selected weak and pliable CVCs. So the draft bill proposes a selection committee comprising the Lok Sabha Speaker, the Rajya Sabha Chairman, the Comptroller and Auditor General, the Chief Election Commissioner, the two seniormost judges of the Supreme Court, two seniormost Chief Justices of High Courts, the Chairman of the National Human Rights Commission and the outgoing members of the Lokpal. This proposed composition of the committee will certainly be discussed, and perhaps improved upon, during public consultations and discussions within the drafting committee that will now take place.

It has been said that putting the function of redress of grievances on the plate of the Lokpal would make its work unmanageable. Though the Lokpal will only reorganise and supervise the grievance redress machinery (rather than dealing with each grievance itself), this is an issue that will be discussed openly by the committee. By next week, a website that will formally take in all the opinions and suggestions on the Jan Lokpal bill will be launched and announced. People are welcome to read, understand and send their comments on it, to be taken note of.

One must not, however, be under any illusion that the Lokpal law by itself would solve the problem of corruption. Unless we tackle and change the policies that create enormous incentives for corruption and monster corporations that become too powerful for any institution to control, the fight will be incomplete. The judiciary too is in need of comprehensive reforms.

But an independent, credible and empowered Lokpal is a necessary, though not a sufficient, condition to effectively control corruption. Let us work at least to put that in place.

(Prashant Bhushan is a senior Supreme Court lawyer and member of the joint committee to draft the Lokpal bill.)

‘Needed: a single, empowered Lokpal to fight corruption’

Vidya Subrahmaniam in THE HINDU

Santosh Hedge, Prashant Bhushan have drafted alternative bill


Existing system “flawed,” the probe being divided among multiple, ineffective agencies

Draft aims to bring whistleblower protection within Lokpal ambit


New Delhi: Santosh Hedge, Lokayukta of Karnataka, and Prashant Bhushan, Supreme Court lawyer, have drafted an alternative Lokpal bill — there have been several official versions — with the aim of replacing the existing, mutually exclusive anti-corruption agencies with a single, autonomous apex body empowered to investigate and prosecute politicians, bureaucrats and judges.

The draft bill also aims to bring whistleblower protection, currently in the form of a separate bill, within the ambit of the Lokpal.

The draft bill, recently released to the media by the non-profitable NGO, Parivartan India, has been sent to the Prime Minister and the Chief Justice of India. In identical letters, dated December 1, to Manmohan Singh and Justice S.H. Kapadia, Arvind Kejriwal of Parivartan and other signatories described the existing system of investigating corruption as deeply flawed what with the task being divided among multiple, ineffective agencies.

The letters pointed out that while the Central Vigilance Commission (CVC) and the Comptroller and Auditor-General of India (CAG) were independent, they were rendered toothless, being advisory bodies that were invariably overruled by the government in power. On the other hand, the Central Bureau of Investigation (CBI) was dependent on the government for permission to investigate and prosecute. The CBI lawyers were appointed by the Law Ministry and they reported to it. This explained the demand for Supreme Court-monitored investigation into the 2G spectrum scam.

The letters said this led to a situation where the “high and mighty” never got punished while the poor were harassed for petty crime in police stations. “In view of this state of affairs, we need a total overhaul of the anti-corruption delivery system,” the signatories said.

The draft bill proposes a single, autonomous Lokpal combining within it the powers and mandate of the CBI and the CVC and with jurisdiction over politicians, bureaucrats and judges. Besides being able to independently initiate investigation and prosecution without prior permission from any other agency, the body will act as an appellate authority in respect of public grievances linked to bribery.

The whistleblowers, currently under the supervision of the CVC, will also come under the protective purview of the Lokpal. The members and the chairperson of the Lokpal, 11 in all, will be selected by a transparent and participatory process and any complaint of wrongdoing against a member will be required by law to be investigated and acted upon within a month through a transparent process. In the event that the charges are upheld, the loss to the exchequer by the officer’s wrongdoing will be recovered.

Explaining why whistleblowers were brought under the draft bill, Mr. Kejriwal said they mostly reported political corruption. “But because they are under the CVC, which has no jurisdiction over politicians, they have no effective protection and many of them live in danger. The draft bill aims to rectify this unfortunate situation.”

‘I feel let down’

A FRONTLINE INTERVIEW

Santosh Hegde: “I will continue the investigation.”

JUSTICE N. Santosh Hegde, a former Supreme Court judge, was appointed the Lokayukta (ombudsman) for Karnataka in 2006. In a report presented to the State’s Bharatiya Janata Party (BJP) government in 2008, he exposed major irregularities in iron ore mining in Bellary district. Hegde feels if the Lokayukta institution is “given some extra powers like prosecuting without sanction through very special courts, then it can deal with cases of corruption in six months’ time”. Excerpts from the interview he gave Frontline:

Has corruption increased?

Certainly. It has increased very much. Not only the number of corrupt people but also in the quantum demanded has gone up.

What do you attribute this rise in corruption to?

I feel it is the greed of the people who are involved in these practices. Today, hundreds of crores of rupees has no value. Take, for example, the siphoning off of money in the conduct of the Commonwealth Games. It is about Rs.70,000 crore. Take the 2G spectrum scam, the figure cited is Rs.1,76,000 crore. The amount involved in the Bofors scam was only Rs.63 crore. When we compare these figures and look at the few years in which corruption has grown, I feel not only the opportunity but also the demand for corruption has risen. Obviously, the people who bribe also have the capacity to give that much money. Consequently, they will have to suck it out of somebody. And ultimately, the [adverse] effect is on the common man.

What is the relevance of the Lokayukta in such a situation?

Maybe without the Lokayukta the quantum [of corruption] might have been more because it would have been unhindered. Anti-corruption bodies have been there for several decades but they have not been a deterrent. If the Lokayukta is given some extra powers, like the power to prosecute without sanction through very special courts (I’m placing an emphasis on ‘very’ because the special courts that we have now take seven to eight years to deal with cases), then it can deal with cases of corruption in six months’ time. The rate of corruption will come down immediately by about 35-40 per cent.

Have you sought such prosecuting powers?

I have not made any demand because if such powers are given, it should be through an all-India enactment. Changes should be made to procedural law.

After you withdrew your resignation earlier this year, some of your powers were enhanced.

Half of one. I had asked for many.

What were your demands?

I wanted power suo motu to inquire, without any complaint, against higher officers and politicians. They [the Karnataka government] gave me the power only to act against the higher officers but not against politicians. Some of my other demands, such as doing away with sanctions, were also not met.

Then why did you withdraw your resignation?

I was promised that my powers would be extended. The Chief Minister, in the presence of BJP president Nitin Gadkari and Law Minister Suresh Kumar, promised to meet my demands.

Do you feel cheated in some way?

I feel let down. I will not use the word cheated. Some people asked me why I didn’t resign again. I said it would look juvenile and people would lose faith in the kind of work I do.

When you resigned, there was a lot of public support for you. You are perceived to be the people’s guardian. What do you have to say about this role? Are you living up to people’s expectations?

I think I am going by the number of invitations I get to address students in schools and colleges and employees of information technology firms. I have addressed students of 187 schools and colleges on building a value-based society and on the true meaning of satisfaction and contentment. I receive invitations from almost all the Central government institutions during their annual Vigilance Week.

So, although your powers are curtailed your role is recognised by society.

Yes, I think I agree with that statement even if it sounds like self-praise. There is also the poorer class which admires my work and that is not because of our anti-corruption work. The object of this institution is to ensure good governance. Wherever people face bad governance or are denied justice, they come to us.

Moving on to a sore point, you were hurt by the actions of the government with regard to the illegal mining issue. Even after the publication of your report no action was taken against the illegal miners who operate freely within the government. In a way, they have openly challenged you. How do you feel about it?

It does not make me feel happy but I will not be cowed down. I must continue my fight. If I cannot reach them [the illegal mining barons], let me at least help those who are in trouble because of other issues. However, I am quite confident that we will reach them. I have got an inquiry going on. The last part of the report will be completed much before my retirement, and I’m sure we will be able to catch some big fish.

What are the salient points of the affidavit filed by the Janata Dal (Secular) with the Lokayukta on November 18?

It says the Chief Minister [B.S. Yeddyurappa] does not have the authority to denotify the lands and that he has not followed the rules. It also says the denotification was not done in good faith but with a corrupt intention, to help his kith and kin. That is their main concern. I have read the complaint and we have taken cognisance of the complaint. The judicial officer scrutinised the complaint on November 20 and I signed [approved] it today [November 23].

Now that the Chief Minister has ordered a judicial probe, can the Lokayukta still continue the investigation?

According to me, yes, because any pending matter, if it has to be transferred from one investigative agency to another under the Lokayukta Act, will need the prior concurrence of the Lokayukta.

And this has not been taken?

No, I was not taken into confidence. No one discussed this issue with me. I came to know through the media.

So you will continue with your investigation.

Yes, my investigation is going on – the legal aspect of it. Prima facie I don’t think they [the Chief Minister’s family] could have done that. But I will continue the investigation.

What is the status of the investigation into the alleged involvement of Minister Katta Subramanya Naidu in a land scam?

That case is almost ready and they [the accused] will be charge-sheeted in a week or 10 days. The charge sheet was ready for filing a few days ago but we discovered some relevant evidence connected with the investigation. We will file a comprehensive charge sheet as far as this part is concerned.

So there is clear evidence to demonstrate his culpability?

As an investigative agency, my police are clear that there was wrongdoing. Not only rules under the Prevention of Corruption Act were flouted but also offences under the Indian Penal Code, such as forgery, threat and bodily harm, were committed.

At this stage can you comment on the allegations against the Chief Minister?

No, no. I have not seen the orders of the denotification. These need to be studied in detail before I can comment.

Do you think the Central government is doing enough to check corruption?

No, I do not think so. We have had a Prevention of Corruption Act since 1947. A special law is enacted only when a particular crime cannot be handled by a regular law. Obviously, corruption was recognised as a crime serious enough to merit a special law. But what happened in December 2008 when the government tried to denude this law of some of its important sections that were helpful to the investigating agencies? Corruption has become an all-India phenomenon and is all-pervasive. I am reminded of a judgment of the Allahabad High Court by Justice A.N. Mulla, who said, “In a basket full of stinking fish, I can’t pick one and say this one stinks when the whole lot stinks.”

http://www.frontlineonnet.com/stories/20101217272502700.htm

Missing measures

United Nations Convention against Corruption, 2003

Image via Wikipedia

RAVI SHARMA IN THE HINDU

EVEN as members of the investigating teams looking into the corruption charges against Ministers in the B.S. Yeddyurappa Cabinet bemoan the lack of adequate laws to trap, convict and punish wrong-doers, Union Law Minister M. Veerappa Moily is of the view that the public is not doing enough to force the governments of the day to strengthen the laws meant to deal with corrupt bureaucrats and elected representatives. He feels that there is a “total tolerance of corruption” and that the “corrupt are being glorified”.

Moily, who headed the Second Administrative Reforms Commission and produced a report recommending sweeping changes in the political, judicial, administrative and electoral spheres, told Frontline that the Union government should do more. “But where is the public pressure to implement stricter laws against corruption? Especially NGOs [non-governmental organisations] and the media should push the government to act. Today the media and the NGOs are focussed only on temporary gains. They are happy going after small fry and sensationalising issues. The focus should be on evolving, reforming and improving the system of governance. Elected representatives should not be allowed to interfere in the posting of officials. Today pliable officials, especially those belonging to the same caste/community as the elected representative, are sought to be posted in his constituency or in key posts. Cronyism, casteism and nepotism lead to rampant corruption.”

Officers involved in the investigation of corruption charges against government officers and politicians are of the opinion that laws are diluted and inadequate and the government is not prepared to strengthen them. Citing the Prevention of Corruption Act (PCA), they said that the clause stipulating prior sanction from the government for prosecuting higher officials was a major hurdle.

Senior police officers pointed out that since the prosecuting agencies were not independent, investigations by them were bound to be unreliable. Another area that needs to be looked into is the Benami Transactions (Prohibition) Act, 1988. The police officers regretted that although they were aware that thousands of properties were held in benami names, they were unable to act.

With the Corrupt Public Servants (Forfeiture of Property) Bill not yet legislated, offenders are now tried under the archaic Criminal Law (Amendment) Ordinance, 1944. The officers said the ordinance was not powerful as properties of such offenders had to be first attached and then forfeited by the courts of law.

Again, while the Union Cabinet has approved the Whistleblowers Protection Act (where the onus is on the investigating officer to protect the identity of the whistleblower), the State governments have not done enough to protect him/her.

The appointment of the Lokayukta (ombudsman), which was recommended by the Second Administrative Reforms Commission, is not mandatory in all States. “The State Vigilance Commission is still part of the government and is headed by a government servant. Where is the independence? The United Nations Convention against Corruption clearly calls for independent bodies,” one officer pointed out.

According to R.V. Deshpande, who until recently was the president of the Karnataka Pradesh Congress Committee, both the Lokayukta Bill and the Lokpal Bill have to be strengthened and people’s representatives should be brought under their ambit. He said: “At present elected representatives are only required to file an affidavit about their assets. The anti-defection law should be amended withdrawing the Assembly Speaker’s powers to disqualify members. This power should be vested with the High Courts with the stipulation that a decision is handed out within two-three months. A defector should also be barred from contesting elections for at least six years. This will curtail corruption in politics.”

Ravi Sharma