From: Chitta Behera <chittabehera1@yahoo.co.in>
To: arkitectindia@yahoogroups.com; amitabhth@yahoo.com; Amitabh Thakur <amitabhthakurlko@gmail.com>
Sent: Sun, 24 April, 2011 1:57:56 PM
Subject: Re: [Arkitect India] Lokpal- Gateway to the Promised World ?
Jan Lokpal Bill (version 2.2)- Can it rein in a corrupt Government Officer?
Dear Mr.Amitav Thakur,
After going through your mail 'Lokpal- Gateway to the Promised World?' it transpired to me that your perception of Jan Lokpal like that of numerous laymen is not based upon the reading of the text of Bill, rather on the hearsay, speeches and media reports sympathetic to Anna Hazare and 'India Against Corruption' campaigners. Aana's Jan Lokpal, to quote your mail, shall be "an Institution which shall be having so wide ranging powers that it will not only get complaints directly from the people, will also get it enquired, will get FIRs registered if the complains are found true, will seize the property if it is found to be one that has been procured through ill-gotten means, will also start disciplinary proceedings if a person is a government servant and will penalize the government servant as well and so on. Lokpal will be a Police officer, will be the appointing authority, be the Chief Vigilance Commissioner and what not'. Well, it seems you are apprehensive about centralization of too much of powers in a singe body, which is not desirable at all in a democracy based upon the principle of division of powers. Granting the legitimacy of your apprehension, I would like to ask a more fundamental question- do the various provisions made in Jan Lokpal Bill (version 2.2 available at www.indiaagainstcorruption.org ) corroborate at all your apprehension that Anna's Lokpal is going to wield 'wide ranging powers'? Rather I am severely critical of Anna's Bill as it stands today from the opposite standpoint, that the Jan Lokpal envisaged therein has no power worth the name to conduct a full scale investigation into the allegation against a public servant- be he a Government servant, MP, Minister or a Judge- let alone seize the property of or penalize a guilty public servant. Yes, you seem to have been carried by such eye-catching captions of certain Sections of the Bill like 'Lokpal to be a deemed a police officer' (Section 12), 'Issue of Search Warrant' (Section-9), 'Powers in case of non-compliance of orders' (Section 13), 'Provisions relating to complaints and investigations' (Section-18), 'Recovery of loss to the Government' (Section 19), 'Punishment for offences' (Section 19A), 'Imposition of major and minor penalties' (Section 21 B &C), and 'Properties deemed to have been obtained through corrupt means' (28 A).
But if you minutely and meticulously scan these provisions, and that too in concurrence with the rest of the Bill, you are sure to get baffled at the impotence of the envisaged Jan Lokpal to investigate even a Desk Officer, who has been held 'corrupt' or guilty of 'misconduct' prima facie as per the preliminary enquiry by Lokpal himself. For instance, the subsection (vii) of Section 18 (Provisions relating to complaints and investigation) says that Lokpal may 'direct through an interim order, appropriate authorities to take such action as is necessary, pending enquiry or investigation' with a view to prevent 'wastage or damage of public property or public revenue' by the concerned public servant, or 'to prevent further acts of misconduct by the public servant' or to prevent the pubic servant from secreting the assets allegedly acquired by him by corrupt means'. Then the Bill, strangely enough, takes a U turn by privileging the concerned public authority, with a peculiar discretion 'either to comply with or reject the recommendations of Lokpal' 'within 15 days of receipt of such an order'. In the event of rejection of the said order, which is most likely to happen, a nonplussed High Court shall have no option except, if 'it feels important', to 'approach appropriate High Court for seeking appropriate directions to the public authority'. Needless to say, once the case moves on to High Court, there would inevitably follow an endless era of lingering uncertainty and misdirection. Thus, the promise dished out in Section 30 (Time limits) that 'investigation into any allegation shall be completed within six months, and in any case, not more than one year, from the date of receipt of complaint' gets automatically belied. If investigation couldn't be started, let alone completed for the reasons stated above, does the other provision made in the said Section that 'trial in any case filed by Lokpal should be completed within one year' hold good? No and not at all.
Another instance of Lokpal being powerless, nay helpless in getting carried out its own order against corrupt public servant proved so by its investigation is evident from sub-section (vi) of Section 18. This provision says, "If during the course of investigation or enquiry into a complaint, the Lokpal feels that continuance of public servant in that position could adversely affect the course of investigation or enquiry or that the said public servant is likely to destroy or tamper with the evidence or influence the witnesses, the Lokpal may issue appropriate recommendations including transfer of that public servant from that position or his suspension, if he is a government servant". Then, just in the queer manner as mentioned above, the said provision continues, "The public authority shall either comply with or reject the recommendations of Lokpal" and in the event of rejection by the concerned public authority, the Lokpal shall have no option, except to "approach appropriate High Court for seeking appropriate directions to the public authority". Under the circumstances, is there any guarantee that a fair investigation would ever be held and that too completed within one year, followed by a trial to be completed within a year? No, not at all.
Still another instance of the above kind, noticeable in sub-section (iv) od Section 18 is worth referring to. This provision says, "If, during the course of a preliminary inquiry or investigation . . the Lokpal is prima facie satisfied that the allegation or grievance . . is likely to be sustained either wholly or partly, it may, through an interim order, recommend the public authority to stay the implementation of the action or decision compliant against, or to take certain 'mandatory or preventive action' to safeguard against the possibility of further harm taking place. But just as in above two instances, the concerned public authority has been privileged with the peculiar discetion to 'either comply with or reject the recommendations of Lokpal.' And, as in the previous instances, here also the Lokpal shall have no option, except, 'if it feels important', to 'approach appropriate High Court for seeking appropriate directions to the public authority'. As already mentioned, once the case moves on to the High Court, where there is no time-limit for disposal of any case, it may linger for years on end at that level, and even if disposed sooner or later by the High Court, it may thereafter, at the instance of either party, move on to the Supreme Court, where there is a veritable chance of the case hanging fire ad infinitum. Under the circumstances, is there an iota of possibility that the Lokpal as envisaged under Anna's Bill would ever prove capable enough to compel a public authority to accept its interim order, let alone penalizing any of its officers? No, and not at all.
Above all, the sub-section (iii) of Section 18 offers a protective shield to the allegedly corrupt public servant and also the public authority he belongs to, saying that "the conduct of an investigation under this Act against a public servant in respect of any action shall not affect such action, or any power or duty of any other public servant to take further action with respect to any matter subject to investing". Simply put, such a queer provision allows a corruptible regime together with its corrupt personnel to carry on their business as usual even if the investigation by Lokpal might have brought to the fore their acts of corruption deserving stern punishment.
Thus, Jan Lokpal as envisaged under Anna's dream Bill is not a real tiger that can pounce upon anybody and everybody as and when warranted, but a cyber tiger that emits much sound and fury, simply to eye-wash the emotionally gullible Indians unfamiliar with the intricacies of law and administration.
I don't know, how you being a man of All India Civil Service would react to the exposure that I made to some of the quintessential loopholes the JL Bill suffers from. But I in my heart of hearts believe that to put in place a really effective and foolproof Jan Lokpal Bill is the starting point for ushering in of a corruption free India.
Chitta Behera, 25.4.2011
Cuttack, Orissa
Mobile: 9437577546
From: Amitabh Thakur <amitabhth@yahoo.com>
To: amitabhth@yahoo.com; Amitabh Thakur <amitabhthakurlko@gmail.com>
Sent: Sat, 23 April, 2011 9:23:09 AM
Subject: [Arkitect India] Lokpal- Gateway to the Promised World ?
| Lokpal- Gateway to the Promised World ? Lokpal or Jan Lokpal or Ombudsman or whatever name you give to this organization, it is a person who is expected to act as a trusted intermediary between the Government and the general public which would act as a watchdog, an authority and a force to look into, receive, enquire into, act upon, prosecute and penalize corrupt public authorities. Much hope is being pinned upon this Lokpal to curb corruption in the Nation, which is almost universally recognized as the greatest menace our country is facing today. It is being thought that while all the present Institutions and Authorities have completely failed to perform their duty hence a new Public Authority by the name of "Lokpal" will dawn and will wipe away all the corruption or will at least make a substantial and noticeable dent to it. I reject this assumption at the very beginning and call this hope as nothing that a big hogwash. If I can compare it with historical events, I might even be tempted to equate this kind of offering with all those generation of hopes which clever people have been generating over the Centuries to gather power and then to use or misuse it to it their own purposes. While many of my friends might call this thought as being utterly pessimistic or dissuading, some would call it retrograde and some will term it a conspiracy and deep scheming. Some might get tempted to start searching into my past, unearthing some dark sides of my life and try to correlate my thought process with some kind of feeble and shameful attempt to save my own skin. There could be many other kinds of theories related to what I say. But as they say in USA-"I care a damn" because to me what matters more is my conviction and my honesty to self than my getting a certificate from others. Now the question is- "What does the Jan Lokpal Bill" propose? It proposes to provide an Institution which shall be having so wide ranging powers that it will not only get complaints directly from the people, will also get it enquired, will get FIRs registered if the complains are found true, will seize the property if it is found to be one that has been procured through ill-gotten means, will also start disciplinary proceedings if a person is a government servant and will penalize the government servant as well and so on. Lokpal will be a Police officer, will be the appointing authority, be the Chief Vigilance Commissioner and what not. It is exactly at this point that I reject this concept in its totality both theoretically and practically. Theoretically because we don't live in the Primitive ages when there was no division of power and authority. Yes we have Emperor Akbar who did not need any legal procedure to bring a person to his Court, to start the proceedings, to make an order of punishment and to get it executed immediately, all this in a hearing of a few minutes to a few hours. We also had Amitabh "Shahenshah" Bachchan who came out in the streets in the night with a song in the background and a rope sticking around his neck, delivering instant justice. But anyone who really believes in democratic values will understand that such concentration of power in one authority is not only completely against the very premises of democratic norms but is highly draconian and dictatorial. Add to this the adage-"Power corrupts and absolute power corrupts absolutely": and you se the complete picture. Look at the present situation when people are not even willing to lose their exalted position as members of "Drafting Committee" only and all the "Magsaysay awards winners" are so blatantly siding with him, brushing aside all serious accusations as being "insinuated". Just thing what will happen when one of them gets to become the Lokapal with such unbridled powers and starts behaving in the same manner. Then, there is the practical aspect. Yes, in "Nayak", one day Chief Minister Anil Kapoor does deliver thousands of justice in a day but everyone who has been in administration very well knows in what manner the administrative procedures move. When millions of complaints will start pouring in the office of Lokpal, the person will find himself so much flummoxed and paralyzed that all his initial zeal will get evaporated within a week and the same enthusiastic revolutionary will find himself a creeping nerd, complaining of all kinds of systemic problems and resource crunch. We have seen this umpteen number of times and we will see it once again. Next is the issue of an alternative. Yes, these are the problems with a Lokpal but then what is the solution? The solution is not in throwing away the baby itself (and when I say the baby, I mean the huge Governance mechanism that is already existing and functioning) but to look into their problems with all sincerity and honesty and try to find out real and practical ways of removing these problems and handicaps. Kindly don't just try to implant an untested and untried alien in the entire mechanism which in all certainty will prove to be an administrative and bureaucratic burden. He will have all the staff from the same bureaucratic structure, his Secretary will be an IAS officer, his DG will be from IPS. His enquiry team will have Inspectors and Deputy SP from the same police. My God, when CBI could fail, Supreme Court could fail, Prime Minister office could fail (not at all claimed by me but as claimed by these people) then what is the possibility that the Lokpal will not prove to be turncoat. When we could not generate faith on people whom our own public elects and selects (through whatever means), how shall we pin our hopes on people who have got awards like Magsaysay or the Nobel, which are often said to have their own dynamics and their own fine politics. Would I like to repose faith on an award that was never bestowed to a Great person of Modern Era, Mahatma Gandhi while his disciple Martin Luther got it much easily? Summing it up, Jan Lokpal is nothing but a big drama, an eyewash and to me it comes as an attempt to gain power through parallel means. If we want to get rid of corruption, which each one of us want, we can get it done not through some magic band like the Lokpal but through millions of small hard-fought battles in each towns and cities, in each Government office, in each Court and so on. At the same time, when fundamental and structural changes are needed at legal and judicial level, it has to be in the Indian Penal Code, Code of Criminal Procedure, Indian Evidence Act and the Prevention of Corruption Act but these things can be done only by the legal luminaries have sound legal understanding and not by some celebrity activists ripe with newer ideas, not all of them really having implementation utilities. Yes, we are desperate for change but let not someone get advantage of our desperation to thrust some such implement which will soon start showing its own dangers. Instead, let us control our emotions, balance our thinking and take decisions with a proper combination of heart and mind and not through artificially induced incitements of a "Yes, we can" kind of "Promised world." Life is not staged Bhangra but is a multitude of hard-fought battles Amitabh, an IPS officer of UP Cadre- the views presented are his own (all the suggestions, comments, disagreements, criticism, threats, angers and praise are eagerly solicited at amitabhth@yahoo.com or amitabhthakurlko@gmail.com or 91-94155-34526) |
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