A cruel joke on the nation

JAN LOK PAL

JAN LOK PAL COMMITTEE MEMEBERS

PRASHANT BHUSHAN SR. ADVOCATE  IN THE HINDU

All that the government’s Lokpal bill would do is to create an illusion that it has acceded to the public demand for an independent anti-corruption agency.

The Union Cabinet announced on July 28 that in order to honour the commitment it had given to Anna Hazare and the nation at large, it would table a Lokpal bill during the monsoon session of Parliament beginning on August 1. Though the exact contents of the bill as approved by the Cabinet is not known, its basic features as announced by various Ministers show that such a Lokpal as envisaged in the government’s bill will not be able to tackle any significant case of corruption and will in fact be a cruel joke on the nation.

Looking at the major scams that have erupted in recent times, we find that the government’s Lokpal, apart from being sarkari in the sense that it will be selected by a committee dominated by people from the government, would not be able to investigate them. Thus, it would not be able to investigate the Commonwealth Games scam, the Bellary mining scam or the Adarsh Society scam, since it would have no jurisdiction over State government officials. Similarly, it would not be able to investigate the Public Distribution System scam or the scams in the National Rural Employment Guarantee Scheme, because it would have no jurisdiction over officials below Group A. For the same reason it would not be able to take up any of the corruption cases that plague the common people. It would not even be able to investigate the cash-for-votes scam, since that involves the acts of MPs in Parliament. It would also not be able to properly investigate the 2G spectrum scam, since it cannot call for papers from the Prime Minister’s Office, which are relevant for a proper investigation.

Quite apart from the severely restricted nature of the sarkari Lokpal’s mandate, the distinction drawn by the government’s bill between the level of the officers to be investigated (with lower-level officials to be investigated by the Central Bureau of Investigation (CBI) that is under the government, and higher-level officials by the Lokpal) would create enormous confusion about jurisdiction. Since one often does not know in advance the level of the officers who may be involved in a scam, and usually officials of all levels are involved, one would not know whether to lodge the complaint with the government’s CBI or the sarkari Lokpal. If the CBI started an investigation into the Public Distribution System scam on the basis of the assumption that it involved junior officials, and then found that the money trail goes right up to the top, would the investigation then be transferred to the Lokpal? That would lead to duplication of investigation, apart from the very real possibility of the CBI having already ruined the investigation. That is why different investigative agencies are not designated to investigate offences depending on the identity of the culprits. Thus, normally there is one agency to investigate offences under the Prevention of Corruption Act irrespective of the status of the person involved. There may be a different agency to investigate separate offences under other laws, such as the Enforcement Directorate for offences under the Foreign Exchange Management Act, or the Income Tax Department for offences coming under the Income Tax Act. And will we allow corruption by junior officials to be dealt with by the same agencies that are today sleeping over it?

On UNCAC lines

The Jan Lokpal bill had been framed on the lines suggested by the U.N. Convention Against Corruption (UNCAC), which requires all countries to establish independent anti-corruption agencies which would have the jurisdiction to investigate all public officials. The civil society group has therefore tried to set up a comprehensive, independent, empowered but fully accountable Jan Lokpal which would have an adequate investigative machinery under its control (the anti-corruption wing of the CBI to begin with, which would be brought under the administrative and supervisory control of the Jan Lokpal) and would be able to investigate all Central public servants for corruption. The Jan Lokpal bill also provided for Lokayuktas in the States that would be similarly empowered to investigate State public servants. Moreover, the Jan Lokpal would be selected by a broad-based selection committee that would be largely independent of the government, to avoid the kind of farce that has been witnessed in the selection of the Central Vigilance Commissioner (CVC).

What we have in the government’s bill is an agency that would be essentially selected by the government (five of the nine members of the selection committee would be government nominees), would have jurisdiction over less than half a per cent of the public servants, and would be additionally crippled by the fact of not being able to investigate the Prime Minister, judges or MPs for corruption connected with their acts in Parliament. They say that nine members of the Lokpal cannot handle complaints against 40 lakh Central public servants. But that would be done by the investigating machinery supervised by the Lokpal. It has been estimated that on a ratio of one Lokpal official for every 200 public servants, the Lokpal would have a total of about 20,000 officials working under it. That is a medium-sized department. The Delhi Police alone has 80,000 officials.

On the Prime Minister, judiciary

Some of the provisions of the government’s proposal, such as granting immunity from investigation to the Prime Minister, show illiteracy about the basic features of the Constitution. In 1975, a Constitution Bench of the Supreme Court unanimously struck down the Constitution (39th Amendment) Act that sought to put the election of the Prime Minister above challenge, on the ground that such a provision would violate the basic structure of the Constitution. A provision to grant immunity from investigation and prosecution to the Prime Minister would similarly fall foul of several basic features of the Constitution. In no civilised country is the head of the government immune from corruption investigation. Even in India he or she has not been immune. The CBI can, and occasionally under court directions has, investigated the Prime Minister (as in the case involving some leaders of the Jharkhand Mukti Morcha). The problem is that the CBI is under the Prime Minister himself and therefore cannot conduct a credible investigation of the Prime Minister. That was the entire rationale for an independent Lokpal — to free the agency investigating corruption from the administrative control of the very people that it may seek to investigate. This is precisely what the UNCAC requires.

Similarly, the rationale for the government’s proposal to remove the judiciary from the Lokpal’s ambit suffers also from conceptual confusion. They say that bringing the judiciary within the investigative ambit of the Lokpal would compromise the independence of the judiciary. The judiciary needs to be independent of the government. Normally the police or the CBI can investigate judges for corruption. However, the Supreme Court in Veeraswami’s case directed that since the police are under the government, which can be used by the government to harass judges by way of investigation, the prior written permission of the Chief Justice of India would be required for such investigation. This, despite the fact there had been no instance of any judge being harassed in such a manner, since the judiciary can always use its power of judicial review to quash any mala fide investigation.

However, if the investigation of judges would be done by a Lokpal that would be independent of the government (with the further safeguard in the Jan Lokpal bill that a bench of seven members of the Lokpal would grant permission for investigation or prosecution of judges), the whole rationale for the permission of the Chief Justice disappears. We have seen that in the past such permissions have often been denied even in deserving cases for reasons of conflict of interest. Yet the government’s bill seeks to exempt judicial corruption from being investigated by an independent Lokpal, and seeks to retain the present system of investigation by a government-controlled agency after obtaining permission from the Chief Justice of India.

India is today plagued by corruption of such enormous breadth and depth and running across all public authorities that it is now at serious risk of becoming a banana republic and a mafia state. It was in recognition of this alarming reality, demanding a comprehensive, independent, empowered though accountable anti-corruption authority, that Anna Hazare went on an indefinite fast on April 5, 2011.

After seeing the extent of public support for this demand, the government agreed to a joint drafting committee for the Lokpal bill. Refusing to meet most of the demands of the civil society group in the Jan Lokpal bill, the government has now come out with its bill, which will not succeed in tackling even one per cent of India’s corruption.

All that the bill will do is to create an illusion that the government has acceded to the public demand for an independent anti-corruption agency. But the government will have to pay a heavy price for again having underestimated the ability of the people to see through such a charade. The long suffering people have had enough. Come August 16, they will get a glimpse of public anger.

(Prashant Bhushan is a Senior Advocate and member of the civil society team that drafted the Jan Lokpal Bill.)

http://www.thehindu.com/opinion/op-ed/article2306020.ece

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Lokpal bill and the Prime Minister

A cropped Manmohan Singh version of File:IBSA-...

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ANIL DIVAN IN THE HINDU

When the basic structure of the Constitution denies the Prime Minister immunity from prosecution, how could it be argued that the office should not be brought under the scrutiny of the Lokpal?

The Indian citizenry is up in arms against corruption at the highest levels of government. Anna Hazare‘s movement has caught the people’s imagination. The former President, A.P.J. Abdul Kalam, has pitched in and called upon the youth to start a mass movement against corruption under the banner “What can I give?” (The Hindu, June 27, 2011).

According to a CRISIL report (The Hindu, June 29, 2011), inflation has caused the Indian public to be squeezed to the extent of Rs. 2.3 lakh crores. According to the Comptroller and Auditor General of India (CAG), the estimate of loss to the exchequer owing to the 2G spectrum scam is Rs. 1.22 lakh crores. That corruption is a disease consuming the body politic is a fear expressed by dignitaries in India over many years. As far back as 1979, Justice V.R. Krishna Iyer observed in a judgment in his inimitable style: “Fearless investigation is a ‘sine qua non’ of exposure of delinquent ‘greats’ and if the investigative agencies tremble to probe or make public the felonies of high office, white-collar offenders in the peaks may be unruffled by the law. An independent investigative agency to be set in motion by any responsible citizen is a desideratum.”

Mark the words: fearless investigation by an independent investigative agency against delinquent ‘greats’. A good Lokpal bill has to be nothing less.

It is in this context that this article addresses the issue of whether the Prime Minister should be brought under the ambit of an Ombudsman (Lokpal) and be subject to its scrutiny. It is important to observe that in most of the Lokpal bills, including the 2010 government draft (except the 1985 version), the Prime Minister is within the ambit of the Lokpal.

The Constitution

Under the Indian Constitution there is no provision to give immunity to the Prime Minister, Chief Ministers or Ministers. Under Article 361, immunity from criminal proceedings is conferred on the President and the Governor (formerly the Rajpramukh) only “during his term of office.”

So what is the principle behind such immunity being given? The line is clearly drawn. Constitutional heads who do not directly exercise executive powers are given immunity as heads of state. Active politicians such as Ministers, who cannot remain aloof from the hurly-burly of electoral and party politics, ethical or unethical, honest or corrupt, are not given any immunity. They are subject to penal laws and criminal liability.

The basic structure of the Constitution clearly denies immunity to the Prime Minister.

Internal Emergency

During the period of the Internal Emergency (1975-77), Indira Gandhi enjoyed dictatorial powers. She detained without trial prominent Opposition leaders and was supported by a captive and rump Parliament.

The Constitution (Fortieth Amendment) Bill was moved in, and passed by, the Rajya Sabha in August 1975 and later it was to go before the Lok Sabha. The Bill was blacked out from the media and hence very few people knew about it. It never became law because it was not moved in the Lok Sabha.

The Bill sought to amend Article 361 by substituting sub-clause (2) thus: “(2) No criminal proceedings whatsoever, against or concerning a person who is or has been the President or the Prime Minister or the Governor of a State, shall lie in any court, or shall be instituted or continued in any court in respect of any act done by him, whether before he entered upon his office or during his term of office as President or Prime Minister or Governor of a State, as the case may be, and no process whatsoever including process for arrest or imprisonment shall issue from any court against such person in respect of any such act.”

The attempt to give life-time immunity from criminal proceedings for acts done during and even prior to assuming office, of the President, the Governor and additionally the Prime Minister, did not materialise.

Foreign jurisdictions

In Japan, Prime Minister Kakuei Tanaka (July 1972 to December 1974) was found guilty of bribery and sentenced. In Israel, Prime Minister Ehud Olmert was indicted in corruption scandals in August 2009. In Italy, Prime Minister Silvio Berlusconi enacted, through a pliant legislature, a law by which he shielded himself from prosecution. The Italian Constitutional Court recently invalidated crucial parts of that law, which may result in his trial being revived.

The following are some of the main arguments against bringing the Prime Minister under the Lokpal’s scrutiny. The first one runs thus: “The simple answer is, if the Prime Minister is covered under ordinary law (the Prevention of Corruption Act), you don’t need him covered under Lokpal.” This is a view that has been attributed to the former Chief Justice of India, J.S. Verma (Hindustan Times, June 27, 2011). Any misconduct by a Prime Minister can be investigated by the Central Bureau of Investigation: this view is that of Chief Minister Jayalalithaa (The Hindu, June 28, 2011). This objection concedes the principle that the Prime Minister is not immune from criminal liability and can be investigated, but argues and assumes that the Prevention of Corruption Act and the CBI present effective existing alternative procedures. Nothing could be farther from the truth and the ground realities.

What is the ground reality? First, the CBI, the premier anti-corruption investigative agency, is under the Department of Personnel and Training, which is controlled by the Prime Minister’s Office (PMO). Secondly, the career prospects of CBI officers and other personnel are dependent on the political executive, and all officers are subject to transfer except the Director. Thus, the investigative arm is controlled by the ‘political suspects’ themselves. Thirdly, the Single Directive, a secret administrative directive that was invalidated by the Supreme Court in the Jain hawala case in 1997 (Vineet Narain v. Union of India) has been legislatively revived. Consequently, under Section 6A of the Delhi Special Police Establishment Act, the CBI is disabled from starting an inquiry or investigation against Joint Secretary or higher level bureaucrats without the Central government’s prior approval. Therefore, the Prevention of Corruption Act is a non-starter against Ministers and high-level bureaucrats who may act in concert. It is imperative that the CBI’s anti-corruption wing be brought under the Lokpal and not under the PMO. This alone would meet the test of an independent and fearless investigative agency as enunciated by Justice Krishna Iyer.

Secondly, it is argued that if the Prime Minister is within its ambit, the Lokpal could be used by foreign powers to destabilise the government. Today, the checks on the executive government are the higher judiciary, which has actively intervened in the 2G spectrum scam and other scams; the CAG, whose reports against the functioning of the telecommunications sector triggered investigations into scams; the Election Commission headed by the Chief Election Commissioner, which conducted elections in West Bengal in the most efficient and orderly fashion. All these authorities could be undermined by a foreign power. Why should the Lokpal alone be the target of a foreign power? Why not the intelligence and defence services? Why not leaks from Cabinet Ministers and their offices — bugged or not?

Thirdly, it is argued that bringing the Prime Minister under the Lokpal’s scrutiny would mean a parallel government being put in place. This objection is disingenuous. Do the Supreme Court and the higher judiciary constitute a parallel government? Is the CAG a parallel government? Is the CEC a parallel government? Is the CBI a parallel government? The answer is clear. These constitute checks and restraints on the political executive and the administration so that public funds are not misappropriated and constitutional democracy and citizen rights are not subverted. The Lokpal will be under the Constitution and subject to judicial review, and it is imperative that the anti-corruption wing of the CBI be brought under the Lokpal. There is no question of any parallel government. The Lokpal will be only a check on the corrupt activities of the Executive. If all checks and balances are to be regarded as the marks of a parallel government and therefore abolished, it will be a recipe for dictatorship.

William Shakespeare wrote: “There is a tide in the affairs of men, which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life is bound in shallows and in miseries.” There is a tide in the affairs of this country and there is a great opportunity to promote good governance through a powerful and independent Ombudsman. India’s economic reforms, for which the Prime Minister deserves approbation, should not be derailed at the altar of scams and corruption. Will his leadership ride on the tide of fortune and take the country forward to greater heights?

(Anil Divan is a Senior Advocate, and president of the Bar Association of India. E-mail: abdsad@airtelmail.in)

http://www.thehindu.com/opinion/lead/article2148073.ece

Justice V.R. Krishna Iyer, former Judge of the Supreme Court, writes in the context of the article by Anil Divan headlined ‘Lokpal bill and the Prime Minister,’ published on July 1:

Lord Acton, the great British jurist, rightly said: “Power tends to corrupt and absolute power corrupts absolutely.” The Prime Minister is the custodian of the considerable state power. He has to be under public scrutiny.

Therefore I have clearly expressed the view that if power is to be subject to public investigation and scrutiny, he has to be within the ambit of the Lokpal Bill and cannot be exempted from it. Likewise, our judiciary is the watchdog of the Executive. People look up to the judges to ensure that the Executive does not misbehave. The judiciary must be accessible to every citizen who has a grievance against the robed brethren. When Parliament resorts to misconduct and violates the Constitution, people appeal to the judges for a remedy. In this view, the judges are sublime and must have control over the Executive and the parliamentary process. Both these instruments are under the Lokpal’s proposed jurisdiction. There is no case of exemption of these authorities. I am sorry that some high Chief Justices have expressed a different view. I disagree. The greatest menace before India today is that the judiciary itself is corrupt and no action is being taken. There must be a militant, active nationwide movement against corruption. A powerful instrument must be set up for this if the confidence of the people is to be preserved.

The judiciary and the Prime Minister shall be under the Lokpal. The Lokpal itself must be of the highest order and should be plural in number. The Prime Minister and the judiciary shall be like Caesar’s wife: above suspicion.