Why all in one?

Parliament building in New Delhi (Sansad Bhava...

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USHA RAMANATHAN IN THE FRONTLINE

Given the experience with extraordinary powers vested in any institution, the wisdom of having a super-powerful body must be debated.

IT is axiomatic that it is the state that has the exclusive power to make law. As is true of many axioms, this too reflects reality only in part; various groups do, in fact, influence lawmaking. The Disabilities Act, 1995; the Right to Information Act, 2005; and the National Rural Employment Guarantee Act (NREGA), 2005, are obvious examples. Yet, alongside this experience is the intransigence of the state, which the Lokpal debate has thrown into sharp focus.

The government’s Lokpal Bill, 2011, was introduced in the Lok Sabha on August 4, following tough talking and hard bargaining by five members of a civil society team. Yet, this Bill manages to remain status quoist even while ceding some ground. Its ‘Lokpal’ will be a chairperson with a maximum of eight other members, half of whom are to be judicial members. The pool from which it will draw its candidates is populated with sitting and retired judges of the Supreme Court and Chief Justices of High Courts. The appointment process, too, is more of the same.

The government is, by instinct and practice, loath to dilute its control over what it creates, and the Lokpal Bill too is witness to this. The chairperson or any other member is to be removed from office on the grounds of misbehaviour on a report from the Supreme Court, on the basis of an inquiry made by it. The Supreme Court may, however, act only when the reference has been made to it “by the President”, on a petition signed by at least a hundred Members of Parliament or, again, by the President, on a petition from a citizen where the President is satisfied that such reference should be made.

Acceding to the demands of the team of five, the Bill has accepted the formula of a separate investigation wing and a prosecution wing to be constituted by and under the control of the Lokpal. There is relative fiscal autonomy where the Lokpal is to prepare its budget each year, which is to be sent to the Central government “for information”.

The sticky issue of whether the Prime Minister should be subject to the Lokpal’s scrutiny has been answered by including him – “after he has demitted the office of the Prime Minister”. Ministers, MPs and high-ranking officials are within this law, but not the lower bureaucracy.

The inclusion of any person belonging to “any association of persons or trust (whether registered under any law for the time being in force or not) in receipt of any donation from the public” is being read as a way of getting back at a public that has placed the government in this difficult spot. The notable absence of corporations from the ambit of this Bill has drawn adverse comments, especially given the role corporations are to have had in so many recent scams.

Prosecution or disciplinary proceedings, the power of search or seizure, provisional attachment of assets, and the power to recommend transfer or suspension of a public servant who is connected with allegations of corruption are all in the Bill, as are provisions providing for declaration of assets and adverse inference where assets not declared are found in the possession of or in use by a public servant.

Perhaps the most striking deviation from extant law is the change in the nature of the ‘sanction’ power. The power of the executive to withhold sanction for prosecution has been a huge hurdle to holding the corrupt guilty. The government Bill hands over to the Lokpal the power to give or withhold sanction. The Jan Lokpal Bill, too, adopts this approach. Neither, however, acknowledges the changes that have been introduced in the Torture Bill, which, carefully, does not leave the power in anybody’s discretion. It, instead, requires that where the decision is not to allow prosecution, reasons have to be given, which may, then, be subject to judicial review. That places a check on arbitrary use of power by any agency. The formula in the two Bills relocates the discretion in the Lokpal but does not change the nature of that power to exercise discretion.

The presumption of ‘good faith’ – that everything done by a public servant shall be presumed to be done “in good faith or intended to be done in the discharge of official functions or in exercise of his powers” – has been retained.

Generally, then, the government Bill is more of the same with one significant change, some reluctant halfway measures, and much that has been left unconsidered.

The Jan Lokpal Bill has moved through many versions. In June, version 2.3 was made available on the website of India Against Corruption (IAC). Mildly put, this Bill is markedly at variance with the government Bill. This Bill envisages a Lokpal that would have “administrative, financial and functional independence from the government”. To achieve this, the Lokpal is to have its own investigating agency, which it will supervise, monitor and direct. It will appoint and dispense with the services of its investigators.

The arm of the Central Bureau of Investigation (CBI) that investigates corruption is to be excised from it and subsumed in the Lokpal. Some years ago, in an effort to give functional autonomy to the CBI from its political masters, the Supreme Court shifted control of the CBI to place it in the Central Vigilance Commission (CVC). The Jan Lokpal Bill works on the unreasoned belief that the Lokpal will not succumb to the temptations of such extensive control over the investigating agency.

Powers of the Lokpal

The powers of the Lokpal are elaborate and have been set out in two clauses in the Bill. They include the power to

“Appoint judicial officers, prosecutors and senior counsel.”

Initiate and monitor the progress of prosecution.

“Attach property and assets acquired by corrupt means and to confiscate them in certain cases.”

“Recommend cancellation or modification of a lease, licence, permission, contract or agreement if it was obtained by corrupt means, and to recommend blacklisting of a firm, company, contract or any other person involved in an act of corruption.” In this case, the public authority shall either comply with the recommendation or reject it within a month of receiving it. If rejected, the Lokpal “may approach the appropriate High Court seeking appropriate directions to be given to the public authority”.

“Ensure due compliance of its orders by imposing penalties on persons failing to comply with its orders.”

“Initiate suo motu appropriate action… on receipt of any information from any source about any corruption.”

Make recommendations to public authorities, in consultation with them, “to make changes in their work practices to reduce the scope of corruption and whistle-blower victimisation”, and the authority concerned is to send a compliance report within two months.

“Prepare a sentencing policy under the Prevention of Corruption Act and revis(e) it from time to time.” This is an extraordinary prescription by which parliamentary power to detail the policy of punishment is moved to the discretion of the Lokpal. The punishment for corruption can be set anywhere between six months and a life sentence.

“Prepare an appropriate reward scheme to encourage complaints from within and outside the government to report acts and evidence of corruption.”

Enquire into the statements of declaration of assets “filed by all successful candidates after any election to any seat in any House of Parliament”.

Punish a public servant with imprisonment up to six months or fine or both “if he fails to comply with its orders for ensuring the compliance”.

Assume competence to investigate any offence under any other law while investigating an offence under the Prevention of Corruption Act.

Interception and monitoring of various media of communication can be undertaken at the behest of the Lokpal – and a member of the core committee claimed recently that this was non-negotiable.

The breadth of the Lokpal’s interest includes within it complaints of corruption against the Prime Minister, Ministers and MPs, and the higher judiciary, and these shall be looked into by a bench of seven members if the Lokpal so decides. The Lokpal will, among its other functions, protect the whistle-blower and the Right to Information (RTI) activist; deal with grievances where there is a delay or non-performance in delivery of services; and ensure that its own staff does not practice corruption.

A complex appointment process and a complaints procedure by which anyone may complain to the Supreme Court, which will then inquire and decide whether a Lokpal is guilty as charged, are the bulwarks offered against excessive power corrupting the Lokpal.

The inadequacy of these protections has been raised and needs much discussion and reasoned debate.

A multiplicity of powers – to legislate, judge, punish and protect – are to be placed in this institution of the Lokpal. There are questions about constitutionality, separation of powers, checks and balances, and the consequence of absolute power waiting to be addressed in this Bill. It does, however, provide a useful counterpoint to the government Bill.

A postscript: although having the Lokayuktas in the Act is one of the demands, the Jan Lokpal Bill does not elaborate on this theme and stops with stating that “similar provisions for Lokayuktas… will have to be incorporated in the Bill”.

The National Campaign for People’s Right to Information (NCPRI) has proposed a “basket of measures” in place of an omnibus law that vests all the power, and responsibility, in a Lokpal. These largely draw upon Bills pending in Parliament and work at improving and strengthening them. These are the Judicial Standards and Accountability Bill, the Whistleblowers’ Bill, the Lokpal Bill and the toughening up of the Central Vigilance Commission Act, 2003. In addition, a National Grievance Redress Bill, 2011, has been drafted to cover the complaints that arise in the delivery of services.

The NCPRI position is that loading one institution with the work of dealing with corruption and inefficiency in the lower bureaucracy, protecting whistle-blowers and RTI activists, and confronting big-ticket corruption would make for an impossible agenda. As for the judiciary, the independence of the judiciary must be preserved, as must the separation of powers; and dealing with matters of standards and corruption in the judiciary would best be by a separate law. The NCPRI documents are offered as critiques and drafts meant to facilitate discussion.

Suggestions emanating from the Lok Satta and the Foundation for Democratic Reforms reflect on the proposals currently on the table and open the door for discussion. A Bahujan Lokpal Bill, 2011, sent to the Standing Committee brings into the debate the issue of representation in such a powerful body and the recognition of the diversion of funds and policy focus from the Scheduled Castes, for instance, to other purposes as happened during the Commonwealth Games.

Some of the changes that may be brought may need a constitutional amendment. Congress general secretary Rahul Gandhi made a suggestion in Parliament that the Lokpal may be made into a constitutional entity, a suggestion that has been seconded by former Chief Election Commissioner T.N. Seshan.

Given the experience with extraordinary power when vested in any institution, the wisdom of having such a super-powerful, insulated body awaits serious deliberation.

Usha Ramanathan is an independent law researcher working on the jurisprudence of law, poverty and rights.

http://www.frontline.in/stories/20110923281902400.htm

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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
Interactive voice response: 0-92-12-12-32-12
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To learn more about Lokpal please see:
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OFFICIAL LOKPAL BILL AS SUBMITTED TO LOK SABHA

‘Keep UID out of MGNREGA’

FROM THE HINDU

A statement that has been endorsed by 100 individuals/groups from across the world.

The undersigned demand that the plan to link the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) to Aadhaar (or UID) be revoked immediately. This is an extremely dangerous move that threatens to cause havoc in MGNREGA’s fragile structure.

The Ministry of Rural Development has put out a tender (dated October 11, 2010) worth Rs.2,162 crore to engage “service providers” for MGNREGA under a “public private partnership” model. The contract includes “UIDAI compliant enrolment of job card holders under MGNREGA scheme,” “Recording … data in the field such as biometric attendance at worksite with GPS coordinates … and updation of centralised MIS,” and similar measures.

Clearly, the Ministry intends to link the issue of new job cards to UID enrolment in the States. Job cards issued in 2006 are due to expire in 2011. Job cards are required to claim employment under the MGNREGA. If the issue of new job cards is linked to UID enrolment, there is a danger of creating a jam that would disrupt the programme. The process of job cards renewal, in any case a slow process, will be further slowed down. Many people are likely to be denied their entitlement to 100 days of work as they will be without a job card. Further, in spite of the hiring of “service providers”, the entire administrative machinery is likely to be diverted into capturing of biometrics or supervising “service providers”. The scale of MGNREGA works is bound to suffer. This would be a gross injustice to NREGA workers, who are already deprived of their basic entitlements.

The proposal of “biometric attendance at the worksite with GPS coordinates” is completely impractical — many MGNREGA worksites are in remote areas with poor or no connectivity. Does that mean those worksites will close down?

We do welcome the use of technology provided that it enhances transparency, empowers labourers and is cost effective. Such technology has been used with success in Tamil Nadu. For instance, it combines SMS reports on daily attendance with random spot checks to curb the problem of fake muster roll entries. Localised use of biometrics, independent of UID, to speed up payments can be considered. Biometrics and UID are not the same. In Rajasthan, simpler measures have been put in place, such as “transparency walls” where all job card holders in the Gram Panchayat are listed along with days of work, allowing people to monitor implementation.

There are many problems in the implementation of the MGNREGA which need the urgent attention of the Ministry. These include the non-payment of minimum wages, delays in wage payments, insufficient scale of MGNREGA works, discrimination against Dalits and women, and so on.

We therefore demand that neither MGNREGA employment nor wage payments be linked to UID enrolment. Employment of 100 days under MGNREGA is the only universal entitlement that the rural poor enjoy. It should not be jeopardised by the introduction of disruptive technology under pressure from corporate and security lobbies.

Signatories: Nikhil Dey, Aruna Roy and Shankar Singh (Mazdoor Kisan Shakti Sangathan); Jayati Ghosh (Professor, CESP/SSS, Jawaharlal Nehru University); Jean Drèze (Honorary Professor, University of Allahabad); Kamal Mitra Chenoy (Professor, Jawaharlal Nehru University); Reetika Khera (Visitor, Centre for Development Economics); R. Ramakumar (Associate Professor, Tata Institute for Social Sciences); Mallika Sarabhai (CRANTI, Citizens Resource and Action Network Initiative) and others.