Legal concerns

JAN LOKPAL BILL

JAN LOKPAL BILL

V. VENKATESAN IN THE FRONTLINE

In its effort to recommend an effective Lokpal Bill, the Standing Committee has to consider all the nuances of the views of civil society.

THE 31 members of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, drawn from the Lok Sabha and the Rajya Sabha, have an onerous task on hand as they begin to scrutinise the Lokpal Bill. They cannot discuss the government’s Bill oblivious to the anti-corruption movement led by Anna Hazare, which resulted in extraordinary debates and an identical sense-of-the-House agreement in both Houses of Parliament on August 27.

The committee’s Chairman, Abhishek Manu Singhvi, a Congress MP and a senior advocate in the Supreme Court, has promised several surprises in its recommendations on the Bill and is of the view that 80 per cent of the Bill will be changed after the committee submits its report before the winter session of Parliament begins.

This is the first time that members of the Standing Committee will be discussing the provisions of a government’s Bill on the basis of a sense-of-the-House agreement, which is a rare expression of the collective will of the House on a piece of legislation and is a corrective measure. In a sense, it amounts to an admission by all the parties in Parliament that they failed to read the public opinion at the time of introduction of the government’s Bill and therefore they want to ensure that the committee considers the key concerns expressed by the public over the Bill’s omissions.

It is possible that the committee will, in any case, be apprised of these concerns during its two-month-long interaction with the public, seeking comments and suggestions and hearing testimonies from select representatives of civil society and other stakeholders. Yet, the sense of the House on these concerns means that the committee cannot finalise its recommendations without considering that agreement. The committee’s report is not binding on Parliament, which has to debate the provisions of the Bill again, in the light of the recommendations.

The three concerns over which Parliament expressed its sense-of-the-House agreement in response to Team Anna’s demands in order to make Anna Hazare end his fast constitute the salient features of the Jan Lokpal Bill. The agreement was carefully worded in view of the differences among members over how to resolve the three concerns:

“This House agrees in principle on the following issues: Citizens’ Charter, Lower Bureaucracy also to be under the Lokpal through appropriate mechanism, and establishment of Lokayuktas in the States.”

Union Finance Minister Pranab Mukherjee requested the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha to transmit the proceedings of both the Houses on August 27 to the Standing Committee for its perusal while formulating its recommendations on the Bill.

The government has also forwarded to the committee the Jan Lokpal Bill and the comments and suggestions of Aruna Roy’s National Campaign for People’s Right to Information (NCPRI) and those of the Lok Satta party founded in 2006 by Jayaprakash Narayan, a former Indian Administrative Service officer.

The Jan Lokpal Bill, proposed by India Against Corruption (IAC), envisages a single institution that will cover all public servants and at all levels, from the Prime Minister down to the peons, which means all Ministers, elected representatives, civil servants and members of the judiciary. The NCPRI, however, is of the view that this will make the Bill too unwieldy and lead to the concentration of too much power in a single institution.

The NCPRI proposed three different institutions, namely, a national anti-corruption commission, called Lokpal, to tackle corruption of all elected representatives and senior bureaucrats; the Central Vigilance Commission (CVC) to be an investigative, prosecution and appellate authority for the remaining categories of civil servants; and a judicial accountability commission to investigate charges of corruption and misconduct against sitting judges.

While both the IAC and the NCPRI agree that the anti-corruption wing of the Central Bureau of Investigation can be transferred to the proposed Lokpal, the NCPRI wants the anti-corruption wing of the CBI dealing with the lower bureaucracy transferred to the CVC. The latest draft of the Jan Lokpal Bill is silent on the CVC’s future despite its previous version stating that the CVC be subsumed in the Lokpal and the CVC Act be repealed.

The Lok Satta’s model is similar to that of the NCPRI. According to it, the CVC (Chairman and two members) should be ex-officio members of the Lokpal and should be appointed in the same manner as the Lokpal. The CVC will perform all functions as envisaged under the law except that the allegations against Group A officers and above will be referred to the Lokpal. Once the CVC is integrated with the Lokpal, that body will exercise superintendence and guidance of the CBI. The CBI should be divided into two agencies – the normal crime investigation wing and the anti-corruption wing. The anti-corruption wing of the CBI will be accountable only to the CVC and not to the government. In States, the anti-corruption bureau will be directly under the Lokayukta, according to the Lok Satta proposal.

The differences among these three models are not in substance, but only in form. Hopefully, the appropriate mechanism which the committee will recommend should satisfy the authors of these three models.

On the Citizens’ Charter, the sense-of-the-House agreement is silent on the modalities. The Jan Lokpal Bill makes repeated violation of the Citizens’ Charter by any public servant an act of corruption. It defines “grievance” as a claim by a person that he could not get satisfactory redress according to the Citizens’ Charter despite approaching a public grievance redress officer ((PGRO) of the department concerned. The Bill also states that the Citizens’ Charter shall enumerate the public authority’s commitment to the citizens that are capable of being met within a specific time limit, and shall designate the officer whose duty would be to fulfil the commitment of the public authority.

The Jan Lokpal Bill further states that it shall be the duty of the PGRO to get the grievance redressed within 30 days from the receipt of the complaint. If he fails to do so, a complaint could be made to the Lokpal. The Lokpal, after hearing the PGRO, would impose suitable penalty not exceeding Rs.500 for each day’s delay, but not exceeding Rs.50,000, to be recovered from his salary. The Lokpal may also recommend imposition of departmental punishment on such PGROs.

The NCPRI feels that the Lokpal should not be involved in grievance redress because it is impractical, given the numbers that would be involved and the need to tackle grievances in a decentralised manner. It, therefore, suggests the setting up of an independent, specialised and professional grievance redress commission to redress grievances effectively in a decentralised and time-bound manner.

A three-member Bench of the Lokpal, according to the Jan Lokpal Bill, may direct any public authority to make changes in their Citizens’ Charter, and that public authority shall make such changes within a month of the receipt of that order.

The Lok Satta too agrees with the NCPRI that grievance redress should not be part of the Lokpal’s jurisdiction, but should come under a grievance redress authority to be formed at the Centre and in the States. Team Anna insists that grievance redress should come under the Lokpal because it has defined grievance non-redress as an act of corruption. The NCPRI and the Lok Satta do not seem to agree that grievance non-redress should be deemed to be an act of corruption.

However, when the Jan Lokpal Bill provides for an appellate grievance officer (AGO) in each district to receive grievances and requires that there shall be a social audit of each AGO every six months, it is not clear why the AGO cannot perform the functions of the Lokpal, as envisaged in the earlier drafts of the Jan Lokpal Bill.

The IAC’s difference with the NCPRI seems to be only over the definition of corruption, which is basically an academic, rather than a practical, issue. If the objective of grievance redress can be achieved under a different authority in a more effective manner than what has been proposed in the Jan Lokpal Bill, clearly Team Anna could consider the proposed alternative rather than insist on the literal adoption of its draft.

Both IAC and the NCPRI agree that the Lokpal, as an institution, should be replicated at the State level through appropriate Lokayuktas. The Lok Satta adds that the Lokayuktas should be appointed in a similar manner by a State-level selection committee and should have similar powers, protection and functions as that of the Lokpal.

It further adds that with the ratification of the United Nations Convention Against Corruption (UNCAC), Parliament, under Article 253 of the Constitution, has the power to make laws for the entire territory of India even on State subjects in matters relating to corruption. Although the Central government initially had reservations over the demand that the Bill could create Lokayuktas in States, it has now come around to the view that it could enact a model law for the States to adopt without violating the federal principle.

The Jan Lokpal Bill, according to its framers, would be called the Anti-Corruption, Grievance Redressal and Whistle-blower Protection Act. This suggests that the last two aspects are not subsumed under anti-corruption. Therefore, the NCPRI’s basket of measures proposing a separate grievance redressal commission and a distinct and strong whistle-blower protection law makes sense. Chapter XI of the Jan Lokpal Bill, with just one section and five sub-clauses, deals with protection of whistle-blowers. The NCPRI has come out with detailed notes for discussion on strengthening the Whistle-blower Protection Bill, currently pending in Parliament.

The fact that Team Anna wanted Parliament to commit on only these three issues makes it clear that it is flexible on other contentious issues such as the exclusion of the Prime Minister from the Lokpal’s ambit if the allegations against him pertain to national security and defence.

The government’s Bill includes in its ambit corruption in non-governmental organisations (NGOs). Team Anna’s answer to this is that the investigation of allegations of corruption in NGOs by the police does not lead to any conflict of interest and therefore such allegations can be kept outside the purview of the Lokpal. However, if the allegation mentions that a public servant sought to influence the investigation of corruption in an NGO, the Lokpal can investigate it and prosecute the accused.

Team Anna has also answered the criticism that the Jan Lokpal Bill is silent on corporate corruption by drawing attention to Section 6 (o), according to which the Lokpal’s function is to 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, contractor or any other person involved in an act of corruption by the public authority. In the event of rejection of its recommendation, the Lokpal may approach the appropriate High Court for relief.

Another provision is Section 31 (1), which says that no government official shall be eligible to take up jobs, assignments, consultancies, etc., with any person, company, or organisation that he had dealt with in his official capacity. Subsections (2) and (3) of Section 31 call for complete transparency in the award of contracts, public-private partnerships, agreements or memorandums of understanding (MoUs).

Team Anna probably did not consider these provisions critical enough to bargain for their inclusion in the sense-of-the-House agreement even though they seem to be more significant than the three ‘sticky’ issues that it identified as the roadblocks that prevented Hazare from ending his fast.

It is ironical that Team Anna, which had initially questioned the relevance of the Standing Committee fine-tuning and improving the provisions of the government’s Bill, now sets great store by its ability to make a difference to the Bill.

Perhaps its confidence was restored after the committee’s recommendations on the Judicial Standards and Accountability Bill, referred to it by Parliament, became public. In its report, the committee is of the view that the government has to move beyond an incremental approach and give urgent and due thought to a holistic legislation encompassing the appointment process and other related matters to ensure judicial accountability for improved administration of justice.

In particular, the committee has recommended dilution of the provision imposing severe punishment for frivolous and vexatious complaints so that genuine complainants are not discouraged from complaining against the misbehaviour of a judge. The Bill prescribes imprisonment of up to five years and a fine of up to Rs.5 lakh for those found to have made false complaints against a judge.

The committee has also recommended the inclusion of non-judicial members in the composition of the complaints scrutiny panel, on whose decision alone a complaint could be considered by the National Judicial Oversight Committee. The Standing Committee has also recommended the need to broadbase the membership of this oversight committee with nominees from the executive, the legislature and the judiciary, and make it inclusive with representatives of all social classes.

Team Anna has agreed to drop its insistence that the Lokpal should include members of the judiciary in its ambit, on the condition that Parliament adopt a stronger Judicial Standards and Accountability Bill than the one that was referred to the Standing Committee. The Jan Lokpal Bill’s inclusion of the judiciary under the purview of the Lokpal did not go down well with other civil society groups, which are concerned about the threat to judicial independence from an all-powerful Lokpal.

Source: http://www.frontline.in/stories/20110923281901200.htm

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MORE EQUAL THAN MOST

Indira Gandhi

Image via Wikipedia

Many Indian politicians still like authoritarian democracy

ASHOK MITRA IN THE TELEGRAPH

A dose of cynicism is in order. The corporate sector already occupies all the commanding heights in the polity. Hullabaloo over the contents of the lok pal bill cannot but be only a divertissement: let controversy rage over the modalities of fighting corruption in high places, the interregnum will provide enough breathing space to plan new strategies to cover up shenanigans-by-courtesy-of-neo-liberalism. Most of the Supreme Court judges smitten by the activism bug are also bound to retire meanwhile. Once the judicial passion gets spent, anti-graft crusaders too will return to their cloister. Calm, too, will automatically return to the nation’s capital which is the centre of the Indian universe.

The debate on the modalities of tackling corruption in high places has nonetheless yielded one useful by-product: we now have a clue to how some minds that matter are working. A major issue apparently dividing the government and the motley crowd of so-styled civil society warriors is whether the prime minister should or should not come under the purview of the lok pal’s surveillance. Prima facie, there is no reason why he/she should not. He/she may be primus inter pares, but is still a minister; if other ministers come under the lok pal’s scanner, the prime minister too ought to. The government and the party that heads the government coalition are not willing to go along; they abhor the idea of treating the prime minister on a par with other ministers. As points and counterpoints fly across the television channels, the heavyweight of a cabinet minister who has emerged as the principal spokesperson on behalf of the government shot a rhetorical question: is there any country in the world where its prime minister has ever been charged with corruption? The minister was confident there was none. It is therefore, he concluded, ridiculous — and demeaning to the country by implication — to introduce any legal provision to prosecute our prime minister on grounds of corruption; the lok pal must not be allowed to embark on a fishing expedition to find out whether the prime minister has or has not deviated, in the conduct of public affairs, from the straight and narrow path.

Rhetoric deserves counter-rhetoric. Can the official super spokesperson cite the instance of any other country where a prime minister admits that he had been presiding over a bunch of ministers some of whom were corrupt to the core but he/she will not take responsibility for their misdeeds and feels no reason to resign? Do not certain other facts stare at our face too? In Japan, it is standard political practice for the prime minister to seek forgiveness of the people for any major or minor dereliction of duty on the part of the government or any individual minister and vacate office without further ado. In Britain, Harold Macmillan stepped down as prime minister owning responsibility for some sexual dalliance on the part of one of his junior colleagues. Once the convention is firmly established that under circumstances which embarrass the regime the prime minister resigns, no occasion arises to prosecute him/ her. The person elected president is both head of state and head of government in the United States of America. In not too distant a past, one such president, Richard Nixon, had to resign from his august office on the eve of his impeachment in accordance with procedures spelled in the nation’s constitution.

Caesar’s spouse may be above suspicion, but Caesar himself is not in most parts of what is known as the democratic world. The obtuseness embedded in the argument that the prime minister is no ordinary mortal, therefore, provides food for some thought. Democracy means freedom of choice. Is that freedom being availed of to contribute a new definition of democracy itself? Perhaps the intent is to drop the hint that if there could be such a phenomenon as popular democracy or guided democracy, why not accept the notion of authoritarian or totalitarian — or, for the matter, dynastic — as well; others might abide the question, but the prime minister — conceivably belonging to only one particular family — would be free, the ordinary laws of the land would not apply to him/her. Since, exception supposedly proves the rule, the exceptional treatment of the office and person of prime minister would confirm India’s standing as the world’s largest democracy.

Much of this, though, is not original thought and has a distinguished antecedent. Let there be a flashback to the year 1975. Indira Gandhi was peeved no end by that silly judgment of the up-to-no-good Allahabad High Court holding her guilty of electoral malpractices. The judgment, how annoying, imperilled her tenure as prime minister. Poor she; in the event, declaring an Emergency alongside suspension of the fundamental rights granted by the Constitution was the only alternative left to her. It is however an ill wind that does not yield somebody at least some good. The congenial ambience of the Emergency made it easy for Indira Gandhi to ram through a constitutional amendment. The Constitution (39th Amendment) Act of 1975 introduced a special proviso concerning the election to Parliament of the prime minister and the Speaker of the Lok Sabha; no court in the country was permitted to question, on any ground whatsoever, the validity of the election of these two eminences. The amendment was made retroactive, thereby rendering the Allahabad High Court’s verdict on Indira Gandhi’s election ultra vires of the Constitution; it was like waving a magic wand. Another point is also worth noticing. An authoritarian approach to things does not amount to abandoning a sense of aesthetics: it was a bit inelegant to treat the prime minister as a sui generis case; to keep her/him company, the Speaker of the Lok Sabha was tagged on to constitute the duet the validity of whose election to Parliament would be beyond the reach of the legal process.

Indira Gandhi’s experiment with totalitarian democracy met a sorry end in 1977. The Janata regime that followed could at least take time out from its unending internal squabbles to pilot the Constitution (44th Amendment) Act of 1978 which got rid of the 39th amendment; the prime minister (and the Speaker of the Lok Sabha) re-entered the earth and were once more at par with one billion or thereabouts of other citizens who make up the nation.

It is given to human beings to learn from experience. Since democracy grants freedom of choice, it is equally the privilege of human beings, or any collection of human beings, not to learn from experience. Maybe decision-makers in the country’s largest political party have not ever been able to forsake their passion for authoritarian democracy. Was it not sheer bliss to be ruling during those two heavenly years between 1975 and 1977? The wishes and whimsies of an urchin from you-know-which family had the imprimatur of law, thousands of recalcitrant and potentially recalcitrant elements could be locked up without trial in prison, encounter deaths could take care of cheeky, restless youth, the wretched inmates of ramshackle slums besmirching the texture of metropolitan beauty could be loaded like cattle in trucks and dumped in a wilderness fifty or a hundred kilometres away.

Possibly the memory of that paradise still haunts and the blueprint of a new edition of authoritarian democracy is firmly etched on the subconscious. The occasion of the ersatz debate over the nitty-gritty of the lok pal bill is being put to excellent use. It is a sort of a preview of the re-touched dream: the prime minister is no ordinary citizen, she/he is the be-all and end-all of Indian democracy, not just holier than holy, but the holiest; how can anyone even dare to suggest that he/she should be the target of dirty investigation for this or that piffling alleged misdemeanour while in the pursuit of official duties?

If the incumbent prime minister assumes that such solicitude is to protect his dignity and honour, he was born yesterday

http://www.telegraphindia.com/1110701/jsp/opinion/story_14163144.jsp