Why sarkari Lokpal is a big dud-Aug 5, 2011

Why sarkari Lokpal is a big dud


(WE HAVE HEARD ANNAJI AND HIS TEAM,WHY THIS SARKARI LOKPAL IS A DUD AND A JOKEPAL.LETS HEAR GOVERNMENT'S COMMENT AND POINTS WHY THEY WANT TO KEEP OUT EACH AND EVERY AUTHORITY WHICH ARE PRONE TO BRIBRY,SCAMS AND CORRUPTION OUT OF LOKPAL AMBIT!! WHY JANLOKPAL IS NOT ACCEPTABLE???...VT)

TNN | Aug 5, 2011, 07.55AM IST


NEW DELHI: Unlike other legislations, the proposed Lokpal law is different. It concerns the conduct of politicians and bureaucrats - the very people who are claiming the right to give the law its final shape. It's an obvious conflict of interest. That is why TOI has lent support to Team Anna and tried to create a public debate on the Lokpal's office, writes Manoj Mitta. The debate is still not over. In fact, it will not be until we have an effective law that checks corruption. So, even as the Lokpal Bill is introduced in Parliament, TOI takes a close look at the draft - and finds it weak and riddled with loopholes. The government's decision to go ahead with it without meeting Team Anna's objections is a cause for worry. The changes in the latest draft, cleared by the Cabinet last week, have not yet addressed the conflict of interest underlying the Bill meant to create a robust anti-corruption regime. The country is exercised like never before over probity issues. And, if the Bill goes through in its present form, it will be an opportunity lost to set things right. The current legislation remains fraught with deficiencies that could defeat the very objective of this important legislation. Here are the key deficiencies

Hearing before FIR

Civil society has demanded that the Lokpal should not be required to take anybody's sanction for initiating an investigation or filing a charge sheet against any public servant. The Bill allows this but while doing so skews the process of investigation heavily in favour of the accused.

In a radical innovation, the Bill forbids the Lokpal to register any FIR without first giving a hearing to the accused. This is contrary to the general criminal law under which the police are obliged to register a case simply on the basis of information suggesting the commission of a cognizable offence.

As if its additional requirement of giving a hearing to the accused at the pre-FIR stage is not bad enough, the Bill stipulates that the Lokpal, on completing the investigation, should give another hearing to the accused before filing a charge sheet in court. This is again a gratuitous safeguard.

In its anxiety to allay the fears of crooked babus and netas, the legislation spares no thought for the increased risk to whistleblowers on account of such premature disclosure of evidence to the accused. Worse, the Bill provides that a cross case could be filed against the complainant and he would be liable to be punished severely if the complaint was found "false and frivolous or vexatious". The supreme irony lies in the provision that the minimum jail term for a "false or frivolous" complaint is two years, while the public servant in the event of conviction for corruption could get as little as six months.

In fact, such provisions make you wonder whether the Lokpal envisaged by the government can be effective at all. For starters, this entire provision must be re-opened and debated.

Too many exemptions

Reference to India's recent ratification of the United Nations Convention against Corruption (UNCAC) has been removed from the Bill's preamble. According to a note accompanying the legislation, this was meant to prevent the courts from widening the Lokpal's scope. After all, the Bill containing various exemptions falls far short of standards set by UNCAC, which envisions a uniform anti-corruption regime for public servants of all categories (ministers, bureaucrats, judges, legislators). Besides keeping judges out of the Lokpal's remit, it exempts allegations of corruptions against MPs for their conduct in Parliament. And out of the country's 1.2 crore government servants, it covers only 65,000 (0.5%) as Lokpal has been provided jurisdiction only over Group-A Central government employees.

Removal of chairperson and members

The proposal by the five ministers on the joint drafting committee was that the chairperson and Lokpal members were liable to be removed on the basis of a Supreme Court inquiry following a reference made by the President. This has since been amended so that such references can be made by the President not just at the instance of the government but also on a petition signed by at least 100 MPs or on a petition submitted by a citizen where a prima facie case is made out. Since the President's consent remains a pre-condition for the Supreme Court inquiry, this effectively means that no member of the Lokpal can ever be held accountable without the government's nod. Not exactly a recipe for fostering the independence of the institution.

Hitting back at civil society

One of the most astounding features of the earlier draft was to bring NGOs, societies and trusts under the Lokpal's original jurisdiction. This meant that, in a departure from norm, a corruption case could be made out by the Lokpal even when there was no involvement of a public servant. The accused could simply be private persons accused of embezzling NGO funds, irrespective of whether they were funded by the government or registered or not. The latest draft mitigates this controversial provision to some extent by clarifying that smaller NGOs having annual income below the minimum limit prescribed by the government would be exempt from the Lokpal's ambit. Playing it safe, the Bill adds that Lokpal cannot touch bodies established for religious purposes.

Jurisdiction of investigation wing

Given its devious intent to bring NGOs too under its ambit, the latest Bill makes provision for the Centre to obtain the consent of the states so that the Lokpal's investigation wing can have jurisdiction over private citizens across the country. The note accompanying the Bill says, "As police is a state subject, it was felt that we should provide for a consent mechanism to extend the jurisdiction of the investigation officers to the state concerned." Given that state government employees can come only under their own Lok Ayukta, the unmistakable target of this amendment is the lakhs of people associated with those NGOs, societies and trusts covered by the latest draft of the Bill.

Divested of contempt powers

The version prepared by the five ministers in the joint drafting committee vested Lokpal with contempt powers so that it could take action against public servants who did not cooperate with its inquiry or investigation. But the draft cleared by the Cabinet a month later omits this salutary provision. The justification offered for the downgrade was that Lokpal was anyway not a court or tribunal to enjoy contempt powers.

Keeping out the PM

The most high-profile change made in its latest draft of course relates to the question whether the Prime Minister could be made accountable to Lokpal. The draft brought out by the five ministers in June said that Lokpal would have jurisdiction over "any person who is or has been a minister of the Union other than the Prime Minister". Responding to the uproar over such a blanket exemption, the government in its final draft proposed that he too come under Lokpal's oversight - but only "after he has demitted the office of the Prime Minister".

Size of Lokpal

The Bill shrinks the proposed probity body from 11 members to nine. "It was felt that an 11-member Lokpal will be too large," is all that the government offers by way of explanation. It could also have been to get away from the number that was originally proposed by Team Anna. This downsizing proposal is just another signal of the government's rather modest conception of Lokpal.

Eligibility criteria

The earlier Bill (prepared by five government members of the drafting committee) displayed courage in suggesting that the chairman of Lokpal could be an eminent person of long standing from diverse fields ("public affairs, administrative law and policy, academics, commerce and industry, law, finance or management"). But the latest Bill (cleared by the Cabinet) plays it safe stipulating that the chairman would have to be a serving or retired Supreme Court judge or Chief Justice of India. The judiciary is set to dominate Lokpal as half of its other eight members are also required to have a judicial background.

Selection committee composition

Under the earlier Bill, a 10-member selection panel was packed with authorities from within the state structure (from the Prime Minister to a high court chief justice). The only slot left in it for civil society was reserved, curiously, for the National Academy of Sciences president or the senior-most "national professor". The latest Bill provides two civil society slots in a nine-member selection committee: One for a jurist, the other an eminent person. But both are Union government nominees.

Bar on employment after tenure

On ceasing to hold office, the Lokpal chairperson and members are barred from any further employment under the government. The earlier Bill also barred them forever from contesting any election of President or Vice-President or to Parliament or state legislatures. The new Bill however reduces the restriction to five years. Reason: The government found that the permanent restriction originally proposed by five of its ministers was "not fair and reasonable".

Investigating officer needn't be a cop

While the earlier draft said the investigating officer should not be below the rank of deputy superintendent of police, the current draft extends that authority to other officers of equivalent rank. The rationale is that corruption cases could do with investigators from other disciplines such as income tax, customs and audit. This is one of the few amendments that are unexceptionable.

Accused can inspect documents

Under criminal law, an accused is not entitled to any evidence till the investigating agency files a charge sheet against him on the completion of probe. But the latest Lokpal Bill allows him to inspect documents and obtain copies right at the preliminary stage when an investigation is proposed to be initiated by the ombudsman.

Citizens' charter dropped

The earlier Bill enjoined every department to come up with a citizens' charter spelling out its commitments relating to delivery of services or fulfilment of objectives. As a corollary, every department was required to designate a public grievance redressal officer to whom any aggrieved person may file a complaint for non-compliance of the citizens' charter. Team Anna demanded that a violation of the charter should carry sanctions. But, rather than providing teeth to it, the latest Bill drops the charter altogether. The message clearly is that inefficiency cannot be equated with corruption and so there is no need to give a statutory status to the citizens' charter.