We want a lean, mean Lokpal: Abhishek Singhvi

The Chairman of the Parliamentary Standing Committee on the Lokpal Bill, on corruption and the most pragmatic ways to check it.

Rajya Sabha MP and Congress spokesperson Abhishek Singhvi chaired the 30-member parliamentary panel that presented its voluminous report earlier this month on the Lokpal Bill 2011. The report has points of divergence with both the official Lokpal Bill draft and the Team Anna version. (The Union Cabinet on Tuesday night approved a Bill for the creation of the Lokpal with constitutional status that will have no control over the CBI but brings within its purview the Prime Minister with a number of safeguards.) Excerpts from an interview with Mukund Padmanabhan, held earlier in the day.

At the heart of the upsurge of public anger against corruption, which a strong Lokpal Bill has come to symbolise, is a basic truth. Namely, that our criminal justice system, particularly when it comes to corruption, is constantly subverted by political interference in the work of investigation and prosecution agencies. Do you agree?

I agree with the sentiment but not with the way you put it. I think you are entirely right in that there is a great amount of legitimate frustration about the criminal justice system, the sloth and the inefficiency.

I will not deny political interference. But I believe that its statistical occurrence is highly exaggerated. Also, at least during the last five years of transparency and media scrutiny, it is not that easy for the CBI and the police forces to convert black into white. Lastly, the attempts at political interference may be greater than the actual results because there is a great amount of both judicial and media scrutiny.

So in other words, judicial delay is a bigger problem than the lack of an independent investigation and prosecution mechanism?

Far bigger. The second is definitely there, but exaggerated.

Your preface in the standing committee report on the Lokpal Bill presented to the Rajya Sabha strikes a philosophical note. You state that the Lokpal Bill resides in the limited ex-post facto punitive sphere and is no substitute for significant “prophylactic” initiatives. It’s impossible to disagree with this, but it raises the obvious question: what have we been doing about preventive mechanisms all this while?

Progress has been made but it has been slow. But during the last year and a half, the progress on corruption — including prophylactic measures — has been remarkable. Unfortunately, in the debate on the Lokpal, which is a very important punitive measure, the prophylactic and policy initiatives have got lost. As I said in my report, sometimes policy is more important than law.

Allow me to list you some of the steps taken. Roughly 62 bilaterals and 20 further one-to-one treaties [have been signed] in the last two years on black money. It now means that there are 80-odd countries around the world that are obliged to give you information on this. The Whistleblowers’ Bill, a recommendation of our standing committee, will come [before Parliament] very shortly. The Citizens’ Charter Bill will possibly be introduced with the Lokpal Bill or in the next session.

The report of the Ashok Chawla Committee [set up to recommend how government allocates key natural resources] has made specific suggestions. According to me, there are three areas — realty, mining, discretionary powers. There is a listing of all the discretionary powers at the Central-government-level in each department, many of which can be abolished. This itself will make a huge difference. On mining, we are on the threshold of a brand new law; the existing mining law is antiquated and breeds corruption. As for real estate, both the Land Acquisition Bill and other policy initiatives on black money will make a lot of difference. These initiatives will have an effect if they are applied synergistically and given at least two years to operate.

Coming back to the Lokpal, there were sharp divisions in the parliamentary panel you headed on key issues. At the same time, you suggested that the dissent was minimal and there was a considerable amount of unity on a range of issues. In what areas do you think the standing committee made advances vis-à-vis the earlier draft of the Lokpal Bill?

This is a very important question. This report is nowhere like a government draft. Chalk and cheese, earth and sky — that is the difference. Our approach has been not merely to look at the Lokpal Bill draft, or the Jan Lokpal draft or the Aruna Roy draft.

Ours has been to see that the overall structure is workable, valid and efficacious. We believe that in many areas the Jan Lokpal is too starry-eyed and idealistic, and not workable. In some areas, we believe the government draft is retrogressive.

So we have struck a new course. Consider the dissent, which there has been a lot of misinformation about. This was not a normal committee report. It was unusual because in two-and-a-half months, it decided on 23 issues, not just one or two like most committees. Of the 23, there was absolute unanimity on 12 issues. Of the remaining 11, in three issues there was a majority of 29 and only one dissenting voice. On another six, there were 22 for and eight dissents. There was real dissent only on two issues — the CBI (20 to 10) and the inclusion of the lower bureaucracy (17 to 13).

But going by Team Anna and the attention they receive in the media, aren’t these issues the nub? And on the question of including the Prime Minister under the Lokpal, the standing committee left this to Parliament…

Sorry, but there is no dissent there. I could have given the majority view which was for inclusion with deferred prosecution. I was excessively reasonable in putting forward three [divergent] views, all of which had resonance.

Team Anna alleged that by leaving the Citizens’ Charter and the lower bureaucracy out, you had disrespected Parliament and violated the Sense of the House resolution passed in August.

This is a complete misunderstanding. Look at what the Finance Minister said in his reply to the debate in Parliament, which is quoted in the report. He said, “This House agrees in principle on the Citizens Charter, Lower Bureaucracy to be brought under Lokpal through appropriate mechanism and establishment of Lok Ayuktas in the States.” What this suggests is that we must pass a law on the Citizens’ Charter, which we are doing. As for the Lok Ayuktas, we have recommended a common Lokpal-Lok Ayukta Bill, something that goes against the government draft. Being under the Lokpal only applies to the lower bureaucracy. But look at the resolution closely. It says the lower bureaucracy must be brought under the Lokpal through an “appropriate mechanism”…

…Which you imply you have addressed by making the Central Vigilance Commission, which will cover the ‘C’ and ‘D’ level employees, accountable in a way to the Lokpal?

Yes, there is a method to the madness. We don’t want a top-heavy Lokpal set up. We want it to be lean, mean and efficient. To prevent a new organisation from becoming top heavy, if you utilise the CVC, which for the first time will have ‘C’ class employees under it, aren’t we improving the situation? The CVC will then be obliged to file two or three monthly reports to the Lokpal, which will then issue advisories on the basis of this.

The standing committee has recommended both Group ‘A’ and ‘B’ officials come under the Lokpal, unlike the government draft which included only ‘A’. We made a huge jump — this is being forgotten in the controversy. From ‘A’ to ‘B’, the group comprises everyone down from Prime Minister to Section Officer.

Wasn’t the Lokpal conceived as a new mechanism to deal with medium-ticket and big-ticket corruption? Or was it to go below level ‘C’ and include drivers, clerks and peons?

I am not suggesting that drivers and peons are not corrupt. But the Section Officer is the first to write an opinion on the file. From there on it goes upwards. We have said that the ‘C’ group which was not covered until now should come under the CVC. What wrong have we done? They speak as if we have cheated the nation.

There is also a certain amount of misinformation circulating regarding the CBI and investigation. The report deals entirely with Lokpal-referred investigations. The suggestions in it regarding preliminary inquiry, abolition of sanction, separation of investigation and prosecution et cetera are all recommendations made in the context of Lokpal-referred investigation.

It does not seek to deal with a large number of other cases dealt with by the CBI, including murders or those referred to the agency by the higher judiciary.

Isn’t it odd that a legislation to check corruption in government should include NGOs, corporates and the media? This seems a little like tit-for-tat. The NGOs and the media wanted strong legislation against official corruption, so lets put them into the net as well.

This is not true. We have included only NGOs, companies, associations, trusts owned or controlled by the government or those that receive large public donations. The other test is whether they receive donations above a certain amount under the Foreign Contribution Regulation Act. There are figures to show the volume of foreign funding is enormous and the accountability of this is very limited.

And this is necessary? Wouldn’t it dilute the work of a lean, mean Lokpal?

This is necessary because you are dealing with corruption. Today, corruption is accountability. Look at the United Kingdom Bribery Act, a remarkable piece of legislation, which applies to literally everybody — the public and private sectors, U.K. firms acting abroad, non-U.K. citizens acting in the U.K. We have said we need a model like this in tackling bribery. You can’t draw artificial Chinese walls when it comes to a particular sector.

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Bill to cleanse politics of criminals in winter session

Nov 4, 2011, 03.51AM IST TNN[ Dhananjay Mahapatra ]

NEW DELHI: The government is proposing radical reforms to ensure decriminalization of politics and intends to table a bill in the winter session of Parliament proposing to debar candidates facing trial in serious and heinous offences. At present, under the Representation of People Act, only persons convicted by a trial court and sentenced to more than two years imprisonment are debarred from elections for a period of six years, which commences from the date of completion of the prison term. This allows persons facing multiple murder charges to contest elections. Moreover, even if a sitting MP or an MLA is convicted of an offence and sentenced to more than two years jail midway through his term, he continues to be a people’s representative and can attend Parliament or assembly if he files an appeal in the higher court and gets a stay on the conviction. The proposed legislation, first reported by TOI on June 17, is going to be strict on such exigencies and says those who are chargesheeted by police, CBI or other investigating agencies for murder, acts of terrorism, rape, dacoity and similar serious and heinous offences would be debarred from contesting elections till the trial court acquits them. The legislation is part of the larger bouquet of anti-corruption measures government has embarked upon to blunt the attacks it has faced from Team Anna as well as political opponents over the issue of corruption. Government plans to pass three legislations: Lokpal Bill, Judicial Standards and Accountability Bill and Whistleblowers Protection Bill in the winter session. Besides, it has also planned to introduce Grievance Redressal Bill which, while ensuring smooth delivery of services, will also tackle corruption in providing the same. Conceived as an alternative to Team Anna’s insistence that the proposed Lokpal should be tasked with tackling corruption among lower bureaucracy as well, the Grievance Redressal Bill is being projected as a better way of fighting “cutting edge graft”. Government sources point out that under the Lokpal bill, failure to deliver a service is proposed to be treated as an act of corruption. They say this could only delay the delivery of government services since establishing a criminal charge could take time. As against this, the Grievances Redressal Bill provides to separate corruption from failure to deliver a public service/good and, thus ensuring that the grievance for the failure of delivery of service is redressed within a fortnight. During the discussion on stricter measures to decriminalize politics last week in the Cabinet Committee on Political Affairs, law minister Salman Khurshid argued strongly for the bill. These proposals on electoral reforms were firmed up during the tenure of Khurshid’s predecessor M Veerappa Moily, who had constituted a Committee on Electoral Reforms to recommend to the government concrete ways in which the electoral system could be strengthened through legislative means. Khurshid also laid stress on amending the existing provisions of RP Act to make filing of false affidavits by candidates along with nomination papers to declare their assets and criminal antecedents a serious offence which could attract a permanent ban on contesting elections. By this way, disclosure of criminal background would be made non-negotiable.

It means, if a candidate deliberately conceals his criminal antecedents and is found guilty, then he will be forced to abandon a career in electoral politics. The proposed amendments, discussed in the CCPA, also include withdrawing immunity to sitting MPs and MLAs from continuing with their tenure after being held guilty and sentenced to more than two years imprisonment even if they get the conviction stayed by a higher court on appeal. By this, the government intends to force an elected representative to resign from his membership from Parliament or assembly the moment a trial court finds him guilty of an offence and sentences him to more than two years imprisonment.

dhananjay.mahapatra@timesgroup.com

A public interest litigation petition filed in the Supreme Court by members of the India Rejuvenation Initiative, for fast-tracking criminal cases pending against MPs and MLAs, said: “Given a situation in which ‘winnability’ is the sole criterion for selection of candidates and those with deep pockets alone can hope to win elections, a criminal who has amassed money and influence through a ‘mix of terror and patronage’, has greater chances of winning than a clean and decent individual without such’ capabilities’. And most often criminals do win, which is why they are increasingly present in the country’s representative institutions.” The consequences of this trend “are seen in the increasing criminalisation of the process of governance with ministers, legislators, bureaucrats and unscrupulous businessmen combining to plunder public funds and prey on the public.” Criminal cases against politicians pending before courts either for trial or in appeal must be disposed of speedily, if necessary, by appointing special courts, the petition said. A Bench of Justices P. Sathasivam and Jasti Chelameswar issued notice to the Centre, all States and the Election Commission after hearing senior counsel Rajeev Dhavan.

Cabinet approves the Lokpal Bill, 2011

The Union Cabinet today approved the proposal for the enactment of a new legislation in the form of the Lokpal Bill, 2011. The Bill provides for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto.

The Bill envisages setting up the institution of Lokpal consisting of Chairperson and eight Members with the stipulation that half of the Members shall be Judicial Members. It will have its own Investigation Wing and Prosecution Wing with such officers and staff as are necessary to carry out its functions.

The Lokpal shall inquire into allegations of corruption made in respect of Prime Minister, after he has demitted office; a Minister of the Union; a Member of Parliament; any Group ‘A’ officer or equivalent; Chairperson or member or officer equivalent to Group ‘A’ in any body/ Board/ corporation/ authority/ company/ society/ trust/ autonomous body established by an Act of Parliament or wholly or partly financed or controlled by the Central Government; any director, manager, secretary or other officer of a society or association of persons or trust wholly or partly financed or aided by the Government or in receipt of any donations from the public and whose annual income exceeds such amount as the Central Government may by notification specify. However, the organisations created for religious purposes and receiving public donations would be outside the purview of Lokpal.

The Lokpal shall not require sanction or approval under Section 197 of the Code of Criminal Procedure, 1973 or Section 19 of the Prevention of Corruption Act, 1988, in cases where prosecution is proposed. The Lokpal will also have powers to attach the property of corrupt public servants acquired through corrupt means

Can Lokpal be investigator, prosecutor, jury and judge?

DHANANJAY MAHAPATRATIMES OF INDIA

Just 70 days ago, the UPA government succumbed to the pressure exerted by Team Anna, which posed as civil society being supported by advocates and actors, ex-babus, bloggers and twitteratti, swamis and social activists. The high decibel show at Jantar Mantar numbed the government’s political and constitutional thinking. Foxed by the red herring of Team Anna’s popularity, the Manmohan Singh government quickly agreed for a joint committee to draft the Lokpal Bill only to realise that the taste of the pudding is in its eating. Public placating of Team Anna was easy, but translating their exasperating demands into a bill was legally excruciating.

Though the Congress has now stressed that the government will not succumb to Team Anna’s pressures, the draft prepared by both sides, despite their inherent disagreements, has one thing in common. Representatives of both Team Anna and government have perceived more or less a Lokpal who will investigate, prosecute and then change cloaks to stand as jury and judge. This all-rolled-into-one power centre is abhorrent to any democratic system of governance, which gets its legitimacy from a fair system of justice delivery.

Why did the government first succumb to Team Anna, then criticise it and now question its representatives’ character? Does it reflect the vacillating mindset of the two power centres — the PM and the Congress president? Why did ministers rush to discuss with Team Anna on the one hand while on the other, a senior party leader publicly criticised the move? He also went around saying it was time for a young PM?

Manmohan Singh will celebrate his 80th birthday on September 26 next year. Rahul Gandhi will turn 42 in June 2012. Singh has not contested a Lok Sabha election, a victory in which transforms a candidate into a people’s representative. Rahul has won twice from Amethi. It is difficult to judge Singh’s feelings on the vacate-the-chair talk from within Congress circles when he is perceived to be engaged in finding solutions to the most trying situations, both political and social. But what must be worrying the PM and the entire political class is the confrontational build up between the representatives of people and the ‘civil society’ to garner space in the legislative arena in the name of participatory democracy.

Can self-proclaimed representatives of civil society be recognised as harbingers of new legislative framework when the Constitution recognises only the Parliament and Assemblies as law-makers? In the early 1970s, the famous Keshavananda Bharati case was argued before a 11-judge bench of the Supreme Court on Parliament’s power to amend the Constitution. The Indira Gandhi government had argued that a political party enjoying two-thirds support in both Houses of Parliament could delete all provisions.

The bench’s shock and dismay forced the government to mould its arguments, “Though legally, there is no limitation to the amending power, there are bound to be political compulsions which make it impermissible for Parliament to exercise its amending power in a manner unacceptable to the people at large.” The apex court in Keshavananda case [1973 (4) SCC 225] said, “The strength of political reaction is uncertain. It depends upon various factors such as political consciousness of people, their level of education, strength of political organisation in the country, the manner in which mass media is used and finally, the capacity of the government to suppress agitation.

“Hence, people’s will to resist an unwanted amendment cannot be taken into consideration in interpreting the ambit of the amending power. Extra-legal forces work in a different plane.” The SC refused to accept the argument saying it was difficult to fathom the depth and weight of people’s wish when it came to change in law. In the present context, people are exasperated by the level of corruption, but is it their wish to have a all-in-one Lokpal? Are extra-legal forces true reflectors of the people’s wish and will?

http://timesofindia.indiatimes.com/india/Can-Lokpal-be-investigator-prosecutor-jury-and-judge/articleshow/9007025.cms