From: kshirod rout <kshirodroutadv@gmail.com>
To: info@annahazare.org; annahazare1@gmail.com; bvjralegan@gmail.com; bvjlokpal@gmail.com; indiaagainstcorruption.2010@gmail.com; prashantbhush@gmail.com; kiranbedioffice@gmail.com; parivartan@parivartan.com; agnivesh70@gmail.com
Cc: ashokdalai@yahoo.com; hkmohanty@hotmail.com; ashoknanda6@gmail.com; bibhutripathy@gmail.com; subha_bikash@rediffmail.com; chittabehera1@yahoo.co.in; pradippradhan63@gmail.com; basundhara@sify.com; projectswarajya@sify.com; binita.jaiswal@gmail.com; saiprasan2@gmail.com
Sent: Wed, 14 September, 2011 11:55:10 PM
Subject: Grey Areas in Jan Lokpal Bill Version 2.3
To,
Mr.Anna Hazare,
Ralegan Siddhi,
Tal -Parner, Ahmednagar, Maharashtra, India.
Ph- 91-02488-240401, 91- 02488 - 240581,
info@annahazare.org, annahazare1@gmail.com, bvjralegan@gmail.com, bvjlokpal@gmail.com |
SUB: Proceedings and Recommendations of Seminar on Jan Lokpal Bill V 2.3 held at Cuttack on 7.09.2011 under the aegis of All Orissa Progressive Lawyers Association
Respected Annaji,
First of all, we express our heart-felt solidarity to the great country wide campaign you have been leading over months now with a view to ensuring of enactment of a strong and sound Jan Lokpal Bill through Parliament of India. We firmly believe that such an enactment like the Right to Information Act 2005 shall be a great step forward in the direction of building a corruption free India.
You may kindly recollect that earlier in the month of April 2011 we had organized two Seminars in quick succession at Cuttack, one on 16.04.2011 and the next one on 24.04.2011 where the Versions 2.1 and 2.2 were respectively discussed in detail and the recommendations thereof were mailed to you soon thereafter for your kind perusal and necessary action. Though we didn't receive any reply from you or any spokesperson from Team Anna to the suggestions we had then put forth, it was a pleasant surprise to all of us that the current version of Jan Lokpal Bill i.e. V 2.3 seemed to be a much better draft than its predecessors, having incorporated quite some concerns and changes that we had pleaded for in course of our deliberations.
For your kind information, with a view to making our humble contribution to the making of a strong and sound Jan Lokpal Bill for the country, a Seminar, the third one in the series, was orgainsed at Cuttack on 7th September 2011 to understand in depth and reflect on the latest Version 2.3 of the Bill. The speakers, mostly comprising lawyers and social activists, identified not only its points of strength but also grey areas, which need to be addressed and made good at the earliest by Team Anna so as to help the Parliament enact a strong and sound Lokpal law at the end of the day.
Last but not the least, while expressing again our solidarity to your campaign for Jan Lokpal Bill, we look forward to a reply from your end acknowledging the receipt of this letter,
With regards,
Kshirod Kumar Rout, Dt 14.09.2011
President, Progressive Lawyers Association
D/917, Sector-6, CDA, Cuttack-14, Orissa
Email: kshirodroutadv@gmail.com, Mobile: 09937169865
Cc: indiaagainstcorruption.2010@gmail.com, prashantbhush@gmail.com, kiranbedioffice@gmail.com, parivartan@parivartan.com, agnivesh70@gmail.com
Seminar on Legal Aspects of Jan Lokpal Bill 2011 (Version 2.3)
held at Project Swarajya, Bakharabad, Cuttack at 6 to 8 PM on 7.09.2011 under the aegis of All Orissa Progressive Lawyers Association
Mr. Kshirod Rout Advocate, President of the Association and Chairman of the Seminar-
Being the President of the All Orissa Progressive Lawyers Association, the orgainisation that convened the Seminar Mr.Rout presided over the occasion. At around 6 PM he declared the proceedings of the Seminar open. In his opening remarks he briefly mentioned about the background to and significance of the present Seminar which was being held to discuss Version 2.3 of Jan Lokpal Bill. He further observed that this Seminar happened to be the third one in the series, while the preceding two were held on Version 2.1 on 18th April 2011 (visit for proceedings http://www.box.net/shared/sqjoeponle) and on Version 2.2 on 26th April 2011 (Visit for proceedings http://www.box.net/shared/65lfn0sbcmqq6zgkmqp2) respectively. It is a good news to share with you that thanks to the recommendations of the above two Seminars which were sent to Sri Anna Hazare, his Team Members and the members of Joint Drafting Panel, the current version (2.3) of the Draft Bill is a much improved one, and articulates the very critical thrusts and priorities which were missing from its earlier versions. This is not to say that the present Version is completely error free and a model draft law in a complete sense. As a matter of fact, the present version is basically a workable draft law, which can be fine-tuned into a model instrument, with the incorporation of necessary inputs from various watchful quarters, whereas the earlier versions were so erratically drafted that those only deserved to be discarded outright and replaced by improved versions at the earliest. The present Seminar has been called precisely to scan minutely the current 2.3 Version of Jan Lokpal Bill so as to identify its loopholes if any and suggest to Anna Team to plug them with intimation to Parliamentary Standing Committee. With these introductory words President Mr. Rout then called upon Mr.Bibhu Prasad Tripathy Advocate and General Secretary of the Association to briefly speak on the theme of the Seminar.
Mr. Bibhu Prasad Tripathy, Advocate & Gen Secy. of Association-
After welcoming all the participants into the Seminar, Mr.Tripathy opened his stalk with the observation that Jan Lokpal Bill, as it has been projected so far by Team Anna, is a unique kind of law for our country in the sense that it seeks to set up an anti-corruption regulatory body for all the 3 wings of the State covering both Centre and States. Besides it is envisaged to combine in a single sweep the powers of policing, investigation, prosecution and adjudication against all kinds of corruption. It is precisely for this reason that some persons have, on grounds of practicability, expressed their skepticism about the very wisdom of putting such a gargantuan regulatory institution in place by way of legislation.
That having been said, it is also an imperative that all the public servants of the State should be held accountable for all their acts of omission and commissions to the citizens who pay for their salaries and allowances and are therefore their ultimate masters in a democracy. Jan Lokpal Bill is nothing but a legislative endeavor to codify and institutionalize this principle of accountability in the entire statecraft of our polity, and its enactment shall provide for punishment to every public servant whosoever by his/her act of corruption causes loss to the state exchequer or by an act of delay or negligence deprives a citizen of his/her rightful and legitimate dues or entitlement.
It is worth noting that the Jan Lokpal Bill in its present version also seeks to cover within its purview the acts of corruption or misfeasance taking place in the judiciary. But as is well known by now, Anna Hajare himself agreed to give up his insistence on inclusion of judiciary in the purview of Jan Lokpal Bill before he ended his fast at Ramlila Ground, on the ground that there was already pending a draft bill called Judicial Standards and Accountability Bill 2010 in the Parliament and the said bill if enacted into law would serve the purpose of Jan Lokpal Bill in relation to judiciary, that is, by holding the judges and judicial officers accountable before the common citizen in respect of their acts of corruption and negligence.
As regards the background to the Judicial Standards and Accountability Bill 2010, it may be stated that it had its roots in the Judges (Enquiry) Act 1968, which lays down a procedure for enquiry into the charges of proved misbehavior or incapacity of the Judges of the High Courts and the Supreme Court, prior to their removal by way of impeachment by the Parliament. But this Act doesn't provide for any such enquiry, basing upon any complaint from the citizens. Keeping in view the need for a statutory mechanism to address the complaints of the public in this regard, the Full Court meeting of Supreme Court of India on 7 May, 1997 had adopted "the Restatement of Values of Judicial Life" which laid down certain judicial standards to be followed by the Judges of Supreme Court and High Courts. The "restatement" was ratified and adopted by Indian Judiciary in the Chief Justices' Conference 1999. However, it was soon realized that this Restatement lacked in legal authority and could not therefore be enforced. Under these circumstances, it was felt that a full-fledged statute be enacted to enforce the judicial standards and accountability in response to the complaints by the public and thereby bring transparency and increase public confidence in the judiciary. The present Judicial Standards and Accountability bill 2010 aims at fulfilling that critical need of the nation. Under the circumstances, the concurrence of Anna Hazare to keep the judiciary from out of the ambit of Lokpal in view of the Judicial Standards and Accountability Bill 2010 pending in Parliament seems to be a rightful decision.
Lastly, as is well known, there are as of now 4 drafts on Lokpal Bill under consideration of Parliamentary Standing Committee, such as Lokpal Bill 2011 proposed by the Government, Jan Lokpal Bill 2011 proposed by Anna and critical and comparative notes on the need for a model Lokpal Bill submitted by Mrs.Aruna Roy and Mr.Jayaprakash Narain from Loksatta of Andhra Pradesh. Hopefully, the model Lokpal Bill shall emerge in due course by way of appropriating valued inputs from all these sources. It is therefore expected that the learned members of this house while debating the pros and cons of Anna Hazare's Jan Lokpal Bill 2011 shouldn't miss out the relevant elements from other Bills, if any, in course of their deliberations.
Mr. Chitta Ranjan Behera, Advocate and Social Activist-
While hailing the organizers of this Seminar for holding it at an appropriate moment, Mr.Behera first of all observed that out of the four documents referred to by the previous speaker Mr.Tripathy, only two documents, namely those proposed by the Government (http://164.100.24.219/BillsTexts/LSBillTexts/asintroduced/Lokpal%20%2039%20of%202011%20English.pdf) and Anna (http://www.box.net/shared/tyqqc9d0rl8xgglqxpmj) are in the shape of the Bills in a formal sense of the term, while Mrs.Aruna Roy's proposal is in fact a bunch of notes (http://ibnlive.in.com/news/lokpal-bill-aruna-roy-and-ncpris-suggestions/172475-53.html) and Mr.Jaiprakash Narain's note (http://www.loksatta.org/cms/documents/lokpal/LokpalBill_LSandFDRposition.pdf ) nothing more than a sketchy comparative table on what should find place in a model Lokpal law. Then coming to the Government Bill, it suffers from certain congenital deficiencies, on account of which it is not worth discussing in forums of this nature. For instance, its jurisdiction is limited to the public authorities working under Centre only, whereas most of corruption takes place at the level of States (vide Section 1-3). Secondly, only Group-A Officers are kept under its purview, whereas a large incidence of corruption is indulged in by the lower bureaucracy which is directly linked to the common people (vide Section 17-1d). Moreover, there are a lot of exceptions and provisos that bar the investigation and prosecution from being carried out against the alleged acts of corruption by the public servants in high places, as a result of which the nation can never come to know through the agency of Lokpal the real facts about high profile stories of corruption by VVIPs. For instance, no allegation of corruption against a serving Prime Minister can ever be enquired into by Lokpal (Section 17-1a).
Thus, alternatively we are left with only one draft law to reckon with i.e. Jan Lokpal Bill V 2.3, which is basically a sound dispensation for its comprehensive scope, strong orientation against the corrupt and also for the provision of checks and balances as and where required. Look at its Section 17 (Investigation and Prosecution against High Functionaries), which says that a 7-member Bench of Lokpal can allow investigation or prosecution to be held against any such high-profile functionary as Prime Minister or any other Minister, any Judge of Supreme Court or High Court or any Member of Parliament. Besides, the JL Bill basically adopts the comprehensive definition of 'public servant' as given under Section 2-c of Prevention of Corruption Act 1988, which covers every functionary of State from top to bottom working in any of the wings executive, legislative or judiciary.
Of course, a question has been raised about the wisdom of centralizing so many powers in a single body called Lokpal, and as the proverb goes, power corrupts and absolute power corrupts absolutely. But this apprehension is an unfounded one in view of the fact that if Lokpal goes astray or wicked, the Chairman or a Member of Lokpal can be suspended or removed by the Supreme Court after an allegation of corruption, incapacity or misbehavior lodged by any person against any of them is proved genuine (vide Section 11). The apprehension about the unwieldy nature of Lokpal arising out of its allegedly gargantuan size is equally unfounded. We know that India has been managing a massive, country wide network of post offices, which is running more or less efficiently and free from corruption for more than a century now. What is the reason? It is mainly because of the stringent provisions of penalty contained in Indian Post Offices Act 1898 against the officers and employees of post offices who may be violating the law in any manner including indulgence in corruption. There are of course some other public authorities of mammoth size, such as Railways and BSNL, spread out from one end to the other of the country which may not be as corruption-free as Postal Network, but which have been existing and growing, and don't show any sign of crumbling simply due to hugeness in size.
As a matter of fact, what Jan Lokpal Bill asks for is not something radically different from the existing anti-corruption regime. It simply asks for merger of investigative wing of CBI with Lokpal. As every one of us could see, a small group of CBI personnel could arrest in no time the mining mafia Reddy Brothers from Bellary in Karnataka taking the help of Andhra police. It shows that CBI as an investigative and prosecuting agency together with the Prevention of Corruption Act 1988 has enough legal and administrative powers to arrest and imprison any person whosoever he/she may be. The only limitation and that is also the biggest limitation, with the PC Act or for that matter with CBI is the Section 19 of this Act which requires previous sanction of the appropriate authority prior to taking any deterrent action against a corrupt public servant. Due to this limitation the CBI has so far been put into use by the ruling elite against only those corrupt politicians or officers whom they wanted to catch and punish out of their partisan motives and leave untouched those corrupt public servants whom they wanted to save for a similar set of partisan motives. It is therefore proposed to merge the investigative wing of CBI into Lokpal (Section 32) and to delete the provisions relating to the previous sanction in the Section 19 of the PoC Act (Section 29-1).
At this stage, Mr.Jugal Nayak, a leader from BJD Party asked Mr.Behera, if the PoC Act is so powerful but deficient only in one respect i.e. lack of autonomy, why should we not amend it suitably to plug this deficit, rather than go for legislating an altogether new Act called Jan Lokpal Bill? Mr.Behera replied that the Jan Lokpal Bill is not only concerned with checking corruption in the sense of bribery being practiced in public authorities, but also redressal of public grievances arising from denial of rights and entitlements, and protection of whistle-blowers from victimization by vested interests within and outside public authorities (vide Preamble to Jan Lokpal Bill 2011). The Prevention of Corruption Act 1988 or any other existing law of the land has till yet provided for no such provisions other than prevention of corruption. That is why a new law in the shape of Jan Lokpal Bill has been contemplated with a composite 3 pronged mandate, prevention of corruption, redressal of public grievances and protection of whistle blowers.
Mr. Behera further mentioned that the Vigilance Directorate of State Government, which now works as a tool of the ruling power of the State, can turn into a veritable investigative and prosecuting agency against all cases of corruption taking place in the State, once it merges into the would-be Lokayukta of the State, envisaged to be constituted as a part of the Jan Lokpal structure.
Some persons have opined against the inclusion of lower bureaucracy within the purview of Jan lokpal. But as we know, lower bureaucracy is the cutting edge of the administration, which is responsible for delivery of all sorts of entitlements to the common man, be it the issue of a residential certificate by Tahsil Office, BPL Card from Block Office, copy of FIR from Police Station, water connection from a Municipal office or a Driving license from the office of RTO. Here at this level only, the common people feel the pinch of corruption and misfeasance, and it is for this reason that they rallied round Anna Hazare's campaign for Jan Lokpal Bill. There is an exclusive chapter on Grievance Redressal System in Jan Lokpal Bill (Section 25), which requires every public authority to appoint the senior-most officer from within its ranks as the PGRO (Public Grievance Redressal Officer), who is supposed to redress within 30 days the grievance of any person relating to violation of citizens' charter in respect of any entitlement. If he fails to redress it, an appeal against him shall lie before the Appellate Grievance Officer to be appointed at district level by Lokpal. He has the power to levy a fine of Rs.500/- against a day's delay upto a mximum of Rs.50,000/-. Besides, the performance of Appellate Grievance Officer shall be subject to a social audit to be held once in 6 months in the presence of a senior officer from Lokpal. It seems to be a good provision, provided the time-limit within which the Appellate Grievance Officer is to decide the appeal against PGRO is provided in the Bill.
Another outstanding feature of the Jan Lokpal Bill is its provisions for protection to whistle-blowers (Chapter-XI, Section 21). It needs to be mentioned here that a Bill named Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010, with the objective of providing protection to whistle blowers is still pending in Parliament with effect from 26th Aug 2010, but no public debate has taken place around it. Thus, Jan Lokpal Bill ought to maintain the provisions relating to protection of whistle-blowers until and unless the pending Bill is enacted into a full-fledged and fool-proof law after a thorough-going public debate is held around its provisions.
Frankly speaking, the most critical concern relating to Jan Lokpal bill is Anna Hazare's concurrence for omitting the judiciary from the purview of Jan Lokpal Bill on the ground that a draft bill namely Judicial Standards and Accountability Bill 2010 (http://164.100.47.5/newcommittee/press_release/bill/Committee%20on%20Personnel,%20PublicGrievances,%20Law%20and%20Justice/Judicial%20standard%20and%20accountibility%20bill,%202010.pdf) is pending in Parliament for over a year. This matter has already been referred to by the previous speaker Mr.Tripathy. But it needs to be told that National Commission to Review the Working of the Constitution chaired by former Chief Justice of India M.N.Venkatchaliah in their Report of 2002 had devoted exclusively its Chapter-7 on the reform of judiciary including the need for and mechanism of maintenance of transparency and containment of corruption within judiciary. It had recommended for the purpose the constitution of a National Judicial Commission comprising Chief Justice of India as Chairman, two senior-most Judges of Supreme Court, Union Law Minister and an eminent person nominated by the President. But the Bill pending in Parliament provides for constitution of two bodies to be constituted for the purpose, National Judicial Oversight Committee and Complaints Scrutiny Panel at both Central and State levels. While the Oversight Committee would be a composite formation comprising a retired CJI as its Chairman and a Judge of Supreme Court, Chief Justice of a High Court to be nominated by CJI, Attorney General of India and an eminent person to be nominated by President as members, the Scrutiny Panel at either level in contrast shall comprise only 3 members from Judiciary, namely a former Chief Justice as Chairman and two Judges nominated by CJ as members. While the Oversight Committee shall function as an ornamental body, the real decision making powers in respect of crucial matters namely the selection of the complaint to be taken up for investigation and recommendation for prosecution against a corrupt judge shall rest with the Scrutiny Panel. Thus, the pending Bill if enacted into a law in its present shape shall seal the fate of the long standing campaign for judicial transparency and accountability. It is therefore very much warranted that Anna Team should take note of the regressive and counter-productive nature of the pending Bill and call for a country wide debate around it so as to purge it of its unwarranted features.
Before concluding his talk Mr.Behera drew attention of the house to the footnote that appears at the end of the Jan Lokpal Bill V 2.3 saying, "This draft provides only for the Lokpal for central public servants. Similar provisions for Lokayuktas in the States to deal with public servants of the State will have to be incorporated in the bill." If the Jan Lokpal Bill is ultimately meant to provide for both Lokpal at Centre and Lokayuktas at State level, why shouldn't we develop the comprehensive Bill right now, instead of leaving the whole matter to unknown hands in future? Keeping in view the bitter lessons from Orissa where the Government in the name of framing the State Rules for RTI Act has notified and maintained to this day a set of provisions which are not only ultra vires the parent Act but also squarely anti-people, it is very much warranted that the comprehensive Bill covering both Centre and States be drafted right now involving the entire spectrum of vigilant intelligentsia. It is advisable that the comprehensive Jan Lokpal Bill be drafted in the same manner as were Domestic Violence Act 2005 or Forest Rights Act 2006, i.e. leaving no scope to the States to tinker with the basic structure of the Act on the pretext of framing the Rules under the Act.
Mr. Subha Bikash Panda, Advocate
While welcoming Jan Lokpal Bill V 2.3 as an improved draft compared to its earlier versions, Mr.Panda wished it to be further fine-tuned so as to match its lofty goal of fighting out corruption from every sphere of our national life. Towards this end he put forth following suggestions in respect of specific matters-
i) The definition of 'Act of corruption' given u/S. 2(e) appears to be indefinite/ vague at places in respect of certain expressions used therein. The expression 'repeated violation' as mentioned under sub-clause (iv) of the said Section confers unreasonable discretion on the adjudicators to interpret it in their own way and is likely therefore to frustrate the spirit of the legislation. The same may be substituted with the expression 'willful violation'.
ii) The second part of the expression appearing u/S.2(e)(ii) such as 'or obtaining any benefit from any public servant in violation of any laws or rules' raises an apprehension that a person who in order to sustain against the milieus of all-pervading corruption may, at times, yield under duress before a demand for bribery or other manner of corruption. Such an act needs to be excluded from the scope and ambit of 'Acts of Corruption'. Otherwise, many an innocent person who would yield before any corrupt official under duress may run the risk of victimization by the Lokpal. Hence, in the said expression, after the word 'or' and before the word 'obtaining' such words need to be inserted as 'willfully and not under duress', and then a proviso needs to be added after Sec.2(e)(ii), saying "Provided, the person who would obtain any benefit from any public servant under duress must reveal such fact before the Lokpal by making a complaint within 30 days from the date of the occurrence in order to avail the immunity under this sub-section, and onus to prove that the concerned public servant didn't indulge in the alleged act of corruption shall lie on the said public servant".
iii) Closely connected to the definition of 'Act of Corruption' given u/S. 2(e)(ii) is the Section 33 captioned "Immunity to bribe giver in certain cases". However, the meaning that transpires from such a caption is outright negative by the peculiar provision made under it. Section 33 reads as follows, "Any bribe giver may be granted immunity from prosecution by the special court if he voluntarily and gives timely information to the Lokpal about the giving of bribe by him with entire evidence for the purpose of getting the concerned bribe taker/public servant caught and convicted, provided he also relinquishes all the illegitimate benefits which he had received by the giving of that bribe. If the information provided by such bribe giver is subsequently found to be false, the immunity could be withdrawn by the special court". It needs to be remembered that the incidence of corruption has become so pervasive among the public servants that a common man has to pay very often bribe in cash or kind or some other form of gratification to a public servant even to avail a service or benefit, which ought to be legally available to him as a matter of his entitlement under a law or scheme. Given such a scenario, it may, for instance, so happen that a person had to pay some bribe to the concerned public servant to avail a benefit or service to which he was otherwise, legally entitled to. But at the same time, his act of availing the said service or benefit in lieu of the bribe paid to the public servant may be viewed as 'illegitimate' in the eyes of the law. If as per the existing provision he would be required to relinquish "all the illegitimate benefits" which as we found are not "illegitimate" as such, there is no justification at all for keeping such a problematic provision as a condition for granting "immunity to bribe giver in certain cases". Given such a peculiar provision for so-called 'relinquishment', no bribe giver, even if he is otherwise, legitimately entitled to the benefit concerned shall ever lodge any complaint before the Lokpal.
In order to ensure that the provision for granting immunity to a certain group of bribe givers as intended under Section 33 becomes really workable and effective, the said Section may be reworded in such manner as to convey the following implications-
- If it is found on adjudication that a person is otherwise entitled to certain benefits under due process of law or implementation of a public programme but he had to pay bribe to a public servant or a group of public servants to avail the same, he won't have to relinquish any benefit;
- Rather such a complainant would be rewarded with adequate compensation against the bribe he had to pay and the cost of litigation if any he had to bear following the submission of his complaint before Lokpal;
- The category of persons who are compelled to pay bribe to the public servants even to avail the benefits to which they are otherwise, legally entitled to, need to be distinguished from the other category of persons, who not being legally entitled to the benefits concerned could however grab it by way of bribing the public servants or adopting some other foul means. The second category of persons are required to relinquish all such illegitimate benefits in addition to the award of punishment to them on account of indulgence in acts of corruption, and payment of compensation by them to the very persons, who were deprived of their legitimate entitlements due to such act of corruption; and
- In course of adjudication of a complaint by a person against the act of corruption by the public servant, the onus to prove that the concerned public servant didn't indulge in any act of corruption shall lie on the said public servant.
iv) Mr. Panda also drew attention of the house to a wholesome provision now available under Section 24 of the Prevention of Corruption Act, 1988, which is captioned "Statement by bribe giver not to subject him to prosecution" and which grants complete immunity to the bribe-giver in certain situations. The said provision may be retained as such in the Jan Lokpal Bill. Besides, the acts of corruption indulged in by the public servants, which may be captured by the 'sting operations' carried out by any person should be made admissible as evidences before the Lokpal, and the concerned persons involved in the organization of sting operations should enjoy immunity from prosecution just as the bribe-givers in certain situations do.
v) Then Mr. Panda observed with emphasis that both superior judiciary and subordinate Judiciary must remain covered within the ambit of the Lokpal. The definition of 'public servant' in Section 2(l) of Jan Lokpal Bill Version 2.3 is, rightfully enough, same as the one given under Section 2(c ) of Prevention of Corruption Act 1988, which covers inter alia the entire gamut of judges working at different levels of the country's judiciary. Under no circumstances should the advocates of Jan Lokpal Bill yield before the government's demand to exclude the judiciary from the purview of Lokpal.
Mr. Panda further added that the act of corruption being an act of criminal offence may be treated at par with any heinous offence under the IPC, against which no judge if found guilty of such offense should enjoy any differential treatment under any law or court. The demand to exclude the Judiciary from the purview of the Lokpal does not pass the test of reasonableness keeping in view the rider embodied in the Section 17 of Jan Lokpal Bill, which unequivocally states that a 7-member Bench of Lokpal can allow the investigation and prosecution to be held against such high functionaries as PM, any Minister, any MP or any Judge of Supreme Court or High Court centring round the charges of corruption. By no stretch of argument can this provision be deemed as an invasion into the judicial independence. Again, Mr. Panda opined that if we agree to exclude the Judiciary from the ambit of Jan Lokpal, we may lose the battle for a transparent and accountable judiciary, as there exists no certainty about the assurance given by the legislators as to when and in what shape they would enact the law to curb the menace of judicial corruption, which is no less cancerous eating into the vitals of our democracy than corruption among politicians or bureaucrats.
Mr.Panda concluded by saying that we need to present our suggestions for making of a model Jan Lokpal Bill before Anna Hazare and Parliamentary Standing Committee as well, and if necessary a team from amongst us shall visit Delhi for the purpose of appearance and presentation before Parliamentary Committee.
Mr.Kshirod Rout, Advocate & Chairman of Seminar –
He pointed out two basic loopholes in the Jan Lokpal Bill V 2.3, which if not removed shall defeat the very noble purpose of the Bill as reflected in Statement of Object and Reasons and Preamble.
Firstly, in Section 6 (o) it is mentioned that though Lokpal has the power to recommend cancellation or modification of a lease or agreement obtained by corrupt means or to recommend blacklisting of a firm, company, contractor or any other person involved in an act of corruption on the ground of corruption, the public authority has however been given freedom to either comply with or reject the recommendation. Then it is mentioned that in the event of such rejection by the said public authority, the Lokpal may approach High Court for seeking appropriate directions to be given to the public authority. On a close scrutiny of such provisions, a couple of pertinent questions are likely to strike any perceptive reader of this Draft Bill- Firstly, why should the law allow the public authority at all to reject Lokpal's recommendation? Secondly, High Court being a constitutional authority, why should it heed with priority the reference of a case by Lokpal for seeking its directions?
Secondly, Mr.Rout pointed out a similarly ludicrous provision occurring in Section 7(8) of the Jan Lokpal Bill V 2.3, where also the concerned public authority has been allowed the discretion to reject the recommendation of Lokpal to stay the implementation or enforcement of a decision which in Lokpal's view is the source of corruption. In the event of such rejection, Lokpal left with the only option to approach the High Court for seeking appropriate directions to the concerned public authority.
From a close scrutiny of the above mentioned two provisions, it transpires that the Jan Lokpal as envisaged in this Bill is utterly powerless before any public authority small or big which may be indulging in corruption, because the latter has been given power to defy the Lokpal's recommendation for putting a halt to any of its actions or decisions giving rise to corruption. Moreover, the option left to the Lokpal to approach the concerned High Court for seeking any remedial direction vis-à-vis the defiant position taken by the recalcitrant public authority would be of no avail, since the High Court being a constitutional authority itself under Article 226 of the Constitution is not bound to decide the case brought to its notice by Lokpal, keeping in view the priority and time-limit that might have been indicated by the latter.
Such queer provisions are not only legally untenable but also morally reprehensible. Under the circumstances, it is suggested that the second portion of the above two provisions, namely Sections 6(o) and 7(8), which provides for the discretion of the concerned public authority for rejecting the Lokpal's recommendation and in the event of such rejection the option of Lokpal to approach the concerned High Court for seeking appropriate directions in the matter, be altogether deleted.
It needs to be mentioned here that in the earlier versions of Draft Jan Lokpal Bill, such queer provisions stalked their text at several places. For instance, alone in Section-18 of Jan Lokpal Bill V 2.2, the clauses (iv), (vi), (vii) and (viii) were marred by such absurd provisions (visit www.indiaagainstcorruption.org/docs/Jan%20lokpal%20bill%202.2.doc). Following the exposure and critique of the said provisions undertaken by our Association in course of two Seminars held in the month of April last, several such provisions were deleted, leaving only two unaffected as already mentioned. We need to tell the drafters of the current version of Jan Lokpal Bill about the need for complete removal of such queer provisions, otherwise they would, inadvertently though, erect a Jan Jokepal instead of a Jan Lokpal.
Mr.Ashok Kumar Dalai, Advocate –
He welcomed the overall intentions and framework of the Jan Lokpal Bill V 2.3. However, he said that it needs to be sharpened and made as fool-proof as possible before its enactment into law by the Parliament. Mr.Dalai put forth following suggestions for amending the Jan Lokpal Bill at relevant places-
- Acknowledgement of the Complaint-
There should be an explicit provision at the appropriate place in the Bill for immediate registration of every complaint in the office of Lokpal and issue of a letter acknowledging the receipt of the complaint so registered so as to reach the complainant within 7 days from the date of receipt of his complaint. Needless to say, the Acknowledgment Receipt shall serve as a basic document for the Complainant to fight for his legally admissible rights and entitlements all through the process of adjudication until the complete disposal of his complaint by Lokpal.
- Legal Aid to Complainants belonging to indigent and marginalized sections-
As is well known, the persons belonging to poor, SC, ST and Minority sections of populations are the worst victims of corruption and misfeasance marking our present system of governance. They also wish to lodge complaints with appropriate authorities in order to end such incidence of corruption and misfeasance, but they don't come forward to do so because of prohibitive costs and procedures involved in the entire process of litigation starting from filing of the complaints upto their disposal on completion of a lingering phase of adjudication in between. It is therefore very much necessary that Jan Lokpal Bill should contain an in-built provision for legal aid to the indigent, SC, ST and Minority sections for enabling them to file and pursue their complaints before Lokpal without any bother for financial or other attendant hassles.
- Language of Jan Lokpal Bill to be as simple as possible-
It has been observed that the language of Jan Lokpal Bill is comparatively simpler than that of Prevention of Corruption Act 1988 or CVC Act 2003. Yet, it needs to be still simpler and translated into local languages of the country so as to be intelligible to any literate person, whosoever wants to go through it. The popular language of RTI Act 2005 should serve as a model for the language to be used in Jan Lokpal Bill. It is necessary here to draw the particular attention of the drafters to the problematic Section -29 (Applicability and Modifications of the Provisions of Certain Other Acts) laid under Chapter-XVII, where a long list of provisions of various laws, hardly intelligible to common man, have been referred to in respect to their relevance or irrelevance to the proposed law. Besides, it seems that this chapter is also completely redundant in view of the provision made under Section-3 of the Bill providing for the overriding powers of the proposed law vis-à-vis the rest of the laws.
Mr. Hemanta Kumar Mohanty, Advocate
He welcomed the Jan Lokpal Bill for its immense potential as a game changer for India's archaic and faulty system of governance. He however opined that instead of Jan Lokpal Bill addressing to the issues of corruption and inefficiency in judiciary, a separate law needs to be put in place for the purpose. He said, "It is so required keeping in view the need for maintaining independence of judiciary, which we have accepted as a sacrosanct feature of our Constitution. It is of course true that a separate bill called Judicial Standards and Accountability Bill 2010 is pending in Parliament, which aims at making judiciary transparent and accountable. Like so many people I am yet to go through the contents of this Bill. However, we need to study in depth and critically examine its provisions with a view to taking an informed position on it". Concluding his talk Mr.Mohanty wished that the Association organizing the present Seminar should promote the debate around Jan Lokpal Bill in days to come so as to free it from errors and contradictions before its enactment by the Parliament.
Mr.Ashok Nanda, Lok Sammukhya
Mr. Nanda in his brief talk echoed the apprehension harbored by a section of country's intelligentsia that Lokpal of Anna's conception would turn out to be an extra-constitutional, draconian body, the sort of a monstrous giant, wielding a vast scale of untrammeled powers, over all the 3 wings of the State, legislative, executive and judiciary. It may so happen that the Jan Lokpal once it is given the flesh, blood and bones the way the Bill contemplates, it would prove a Frankenstein against our system as a whole. We need to keep in mind that parliamentary democracy is the hall mark of India, where Parliament is a supreme and sovereign body. But the protagonists of Jan Lokpal Bill in their populist drive to steal the show in the political arena have been emphasizing extra-constitutional methods like agitation before houses of MPs and gherao of Parliament as the means to enactment of Jan Lokpal Bill. Downplay and denigration of the image of Parliament and a high voltage hate campaign against the Members of Parliament don't augur well for the country's democracy. It is a dangerous trend reminiscent of Adolf Hitler's Nazi campaign against democracy in general and parliamentary democracy in particular. Further, it is not wise to bring the Judiciary under the purview of Lokpal. The role and behavior of MPs within the Parliament shouldn't also be subject to Lokpal's scanner. So far the PM is concerned he may be brought under the purview of Lokpal except his functioning in respect of some strategic matters like national security. Mr.Nanda further observed that let the Parliamentary Standing Committee take inputs from Anna proposed Jan Lokpal Bill, but the Government proposed bill should serve as the reference point for the re-drafting exercise and inputs from other drafts and sources be consulted for enriching the whole legislative process around Jan Lokpal Bill.
At this point Mr.Kshirod Rout, Adocate and Chairman of the Seminar intervened to make some clarifying observations in reference to Mr.Nanda's apprehension that the Anna's institution of Jan Lokpal is going to exercise absolute authority over every organ of the State without itself being subject to control from any quarter. Mr.Rout informed that there are a number of checks and balances in the Jan Lokpal Bill V 2.3 which would work against the concentration of too many powers in Lokpal, and eventual abuse of the same by its members and staff. Firstly, Chapter-V of Jan Lokpal Bill captioned 'Accountability of Lokpal' provides for removal of Chairperson or members of Lokpal by the Supreme Court following the conduction of an enquiry into a complaint by any person alleging an act of misbehavior, incapacity or corruption against them (Section 11). Secondly, any order passed by any bench of the Lokpal or any officer of the Lokpal shall be subject to writ jurisdiction of the High Court under Article 226 of the Constitution (Section 12). Thirdly, the annual audit of the accounts and performance of Lokpal shall be done by CAG, and an annual performance appraisal of Lokpal shall be carried out by a Parliamentary Standing Committee (Section 13). Fourthly, the Chairman of Lokpal shall present an annual consolidated report in the prescribed format to the President, who shall in turn place it together with an explanatory memorandum before each House of Parliament (Section 14- 1&2). Fifthly, the Lokpal shall publish every month on its website the list of cases received and disposed with brief details of each case and outcome and action taken along with list of cases pending and minutes of Board meetings (Section 14-3). Sixthly, Chapter-VI of the Bill deals with the provisions relating to accountability of the Officers of Lokpal. In each State there shall be constituted one or more Complaints Authority by Lokpal to entertain and decide on the complaints lodged against any officer or staff of Lokpal. Such authority shall consist of 5 members, such as a retired High Court Judge as Chairman, two retired civil servants and two members of civil society. These five members shall be selected and nominated by a Committee of 3 persons, namely Chief Justice of the High Court of the State, Chairman of the State Lokayukta and Chairman of State Human Rights Commission. Again, the final orders passed by the Complaints Authority shall be subject to the writ jurisdiction of the High Court under Article 226 of the Constitution (Section 15). Thus, in view of the aforesaid checks and balances provided for in the Jan Lokpal Bill itself, the apprehension about the Lokpal growing into a draconian and authoritarian body seems unfounded.
Mr.Nigamanand Das, Advocate-
Mr.Das wanted a clarification from the house whether and how far the Jan Lokpal Bill's provision for stringent punishment of imprisonment and fine against corrupt Government servants was compatible with the present constitutional provision like Articles 311, where certain protection has been provided to the civil servants in respect of 'dismissal, removal or reduction in rank of persons'. Mr.Das further observed that the amount of Rs.1 lakh as maximum fine against a baseless and motivated complaint against the public authorities is too harsh and shall discourage the common men from lodging any complaint.
Mr.Kshirod Rout, Advocate and Chairman of the Seminar explained that there is as such no conflict between Article 311 of the Constitution and Chapter XII of Jan Lokpal Bill dealing with 'Penalties and punishments against corrupt public servants'; rather there is good measure of compatibility between the two schemes. As a matter of fact, the Clause (1) of Article 311 says that no civil servant of union or state shall be 'dismissed or removed by an authority subordinate to that by which he was appointed'. Then the Clause (2) maintains that no civil servant shall be 'dismissed, removed or reduced in rank except after an enquiry'. These are the elements of protection given to the civil servants in Clauses 1 and 2 of Article 311. But as against such protection, the 2nd proviso to Clause (2) of Article 311 however states inter alia that in a situation where a civil servant has been convicted of a criminal charge, the protection given to him under Clause (1) or (2) shall not apply. And as we know, the charge of corruption with which a civil servant shall be prosecuted under Jan Lokpal Bill is a criminal charge punishable under Prevention of Corruption Act 1988 (Section 23), which lies as such outside the ken of protection given under Clauses (1) and (2) of Article 311 of the Constitution. Thus the scheme of Jan Lokpal Bill is in perfect harmony with the 2nd proviso to Clause (2) of Article 311 of the Constitution, and that is the reason for which there is no need for amending the Constitution before enacting Jan Lokpal Bill in its present version.
Prof. Kalimulla, Lecturer Economics -
Prof. Kalimulla welcomed the Jan Lokpal Bill as a powerful legislation that can strike at the root of corruption in every sphere of our public life. He supported the proposal for keeping all the wings of state including judiciary under the purview of Lokpal. His second suggestion was to ensure the provision of a time-limit for every dispensation of Lokpal. It has been noticed that in certain matters time limit has not been specified. For instance, there is no time-limit specified within which the Appellate Grievance Officer posted in place by Lokpal shall decide on the complaint lodged by the aggrieved person before him against the Public Grievance Redressal Officer. The next suggestion that Prof. Kalimulla offered was that there should be specific mention of the qualifications that the Chairman or a member of Lokpal should possess. It is ironical that though Section 4 of Jan Lokpal Bill at various places mentions what are the negative elements that disqualify a person from being a candidate for chairmanship or membership of Lokpal, there is no mention of the positive qualifications that make a candidate pass the eligibility test for Chairmanship or Membership of Lokpal, except very sketchily at Section 4(10), where it has been mentioned that "only persons with impeccable integrity and record of public service particularly in the field of fighting corruption shall be eligible for being considered for nomination". There is however no specification of years of service in public life or of academic background, which would serve as requisite qualifications for Chairmanship or membership of Lokpal from non-legal background. This critical deficiency ought to be made up.
Mr.Krushna Ch Samantray, Social Activist-
Mr.Samantray expressed his whole-hearted support to the campaign for Jan Lokpal Bill. The provision for exemplary punishment to be meted out to the corrupt servants is likely to check the menace of corruption in our public life. However, the language used in Jan Lokpal Bill is to be made further simple, so that everybody is able to follow its provisions with ease.
Mr. Asit Jena, Advocate-
He wanted to know how far the members of Team Anna are themselves free from corruption. If they are corrupt themselves, is there any justification that we follow them in respect of what they say about Jan Lokpal Bill? Mr. Kshirod Rout, Advocate and Chairman of Seminar clarified that we are here to discuss the merits or lack of it in Jan Lokpal Bill, which though drafted by Team Anna is now the property of Parliament and as such that of the nation as a whole. Everyone has the right and obligation to comment on its provisions and see that the Bill is made further strong and foolproof to equal the gigantic task of eradicating corruption from our public life. If the members of Team Anna and drafters of Jan Lokpal Bill turn out to be corrupt themselves, let them face the investigation and prosecution on account thereof. We are least concerned with them as persons. Of course, we would certainly condemn any motivated action of the Government to malign them so as to defuse the anti-corruption movement and the campaign for Jan Lokpal Bill. Be that as it may, we need to stay focused on our endeavor to fine-tune Jan Lokpal Bill more and more and campaign in its favour among the public at large.
Mr. Lalit Mishra, People's Vigilance Council, Orissa
He opined that Lokpal Act should have strong provisions against the corrupt public servants just as RTI Act has strong provisions against its violators. The RTI Act enables the people to collect the information as to where and by whom the corruption takes place, but it couldn't do anything beyond this point to curb corruption or against the corrupt.The Lokpal Act would fill that deficiency in our system. That is why, Lokpal law is said to bring about the next revolution after RTI in our system of governance for making it transparent, accountable and corruption free. He further mentioned that his organization Orissa People's Vigilance Council, which has ever remained active on the front of RTI Act is also equally enthusiastic about Anna Hazare movement for Jan Lokpal Bill. Former Director CBI Mr. Uma Shankar Mishra and former DG Orissa Police Mr.Gopal Nanda are now associated with his organization and doing the campaign for Jan Lokpal Bill. He informed that on coming16th a Seminar shall be held on Jan Lokpal Bill at Universe, Cuttack so as to popularise it among cross sections of Orissa's intelligentsia.
Concluding words of Mr.Kshirod Rout, Advocate and Chairman of Seminar-
Before winding up the deliberations, Mr.Rout observed that the recommendations of this Seminar shall be sent to both Anna Hazare and members of his team and Parliamentary Committee. The recommendations as have emerged from this house are of two kinds, (1) those which aim at to making Jan Lokpal Bill strong and fool-proof, purged of diluents and incongruities, and (2) those which are necessary to free the draft bill from silly errors, which are mostly syntactic in nature.
Mr. Raj Kishore Singh, General Secretary Janata Dal (U) Orissa-
On the request of the President of the Seminar, Mr. Singh rose and moved the vote of thanks to the speakers and members of the house whose combined contribution has made the Seminar into a success. In course of thanks giving speech Mr.Singh made some general observations on the topic of the day. He held that though the Prevention of Corruption Act 1988 is a strong anti-graft law barring aside its provision for previous sanction, it lacks in some important dimensions, such as grievance redressal, protection to whistle-blowers and ensuring of judicial standards and accountability, which are covered under Jan Lokpal Bill. However, it is also true that Jan Lokpal Bill in its present version does also suffer from a lot of omissions and commissions, which need to be plugged by informed debates and discourses among the watchful intelligentsia of our country. Precisely speaking, what is urgently required at the moment is a strong, fool proof Jan Lokpal Law that can effectively address to the issues of corruption in every segment of our state edifice including judiciary.
Mr.Singh then opined that the existing provision of Jan Lokpal Bill to prosecute the bribe giving person irrespective of whether being entitled to the concerned benefit he did pay the bribe under duress or he paid bribe to grab extra, illegitimate benefits, is not acceptable. The person having entitlement over a due, but paying bribe under duress should be kept outside the purview of act of corruption.
Then Mr. Singh continued to say that on the acceptance of Jan Lokpal Bill by the Parliament, a backlash has already surfaced against Team Anna by a nexus of corrupt politicians and bureaucrats across the country. They are trying to discredit the movement for Jan Lokpal by spinning out orchestrated stories of corruption against its members. But such vindictive action of theirs won't stop the grand people's movement for Jan Lokpal Bill from marching ahead, if we the champions of this Bill stand united behind it on our own. Let's hope, in near future we shall have more of such brain churning occasions as today's seminar.
(For making Jan Lokpal Bill stronger and fool-proof)
1) Statement of Objects and Reasons: The elaborate material relating to UN Convention against Corruption (2003) mentioned in the Statement of Objects and Reasons of the Bill may be cut short with its quintessential provisions retained in a concise manner. The SOR should also contain a brief note on the series of draft legislations on Lokpal attempted in the past at the level of Parliament since the introduction of first draft law in 1969, and also on the efforts made in the past and present status on Lokayuktas in various States across India.
2) Section 2(b): The definition of 'Complaint' should also include the grievance lodged by a person against violation of citizens' charter as dealt with under Section 25.
3) Section 2(e)(ii): The 2nd part of the expression is a confusing one and likely to discourage those laymen who pay bribe under duress even to receive their legitimate entitlements, from making any complaint corruption. It needs to be struck off. Or alternatively, it should be rephrased to mean that any person who pays bribe in order to grab some or other benefit to which he is not otherwise legitimately entitled, is supposed to have indulged in an 'Act of Corruption'.
4) Section 33: Closely connected to the definition of 'Act of Corruption' in Section 2(e)(ii) is Section 33 captioned as 'Immunity to bribe giver in certain cases'. The conditionality that a bribe giver in order to avail immunity from prosecution 'has to relinquish all the illegitimate benefits which he has received by the giving of that bribe' is also likely to discourage the laymen who pay bribe under duress even to receive their legitimate entitlements, and therefore needs to be struck off. In its place, a provision needs to be inserted to mean that a person, who willfully pays bribe in order to grab some benefit which is not his legitimate due, can't avail the immunity from prosecution. Further, it should be made clear that a person, who pays bribe under duress so as to receive his legitimate dues or entitlements, is to be offered with immunity from prosecution. This suggestion is also in consonance with Section 24 (Statement by bribe giver not to subject him to prosecution) of Prevention of Corruption Act 1988.
5) Section 2(e)(iv) – The expression 'repeated violation' being indefinable should be replaced by 'willful violation'.
6) Section 2(i) – The expression 'judicial officer' should be replaced by 'judicial officer of Lokpal' in order to distinguish him from the judicial officer engaged in various capacities in the courts of law. In fact the term 'judicial officer' has been used in the latter sense in Section 2(g).
7) Section 2(k)(iii)- The expression 'substantially financed' being vague and ambiguous needs to be defined as to what the word 'substantially' means. It is worth mentioning here that such an expression occurring in Section 2(h) of RTI Act 2005 has turned out to be a source of great confusion.
8) Section 29 – Given that Section 3 provides for overriding nature of the Act vis-à-vis the rest of the laws, the separate Chapter captioned 'Applicability and Modifications of the Provisions of Certain Other Acts' as placed under Section 29 is not only superfluous but also contradictory. The whole of Section 29 therefore needs to be struck off.
9) Chapter II (Establishment of Lokpal)- Though this Chapter mentions at several places what a member or Chairman of Lokpal shall not be like, it should have mentioned at one place what are the requisite qualifications or criteria of eligibility for selection as a member or Chairman of Lokpal.
10) Section 6(o)- The provision made here that a public authority shall have the freedom to comply with or reject the recommendation of Lokpal for cancellation or modification of a lease, license, permission, contract or agreement undertaken by it is superfluous and simply derogatory of Lokpal. The next provision that Lokpal shall in the event of such rejection by the public authority approach concerned High Court for appropriation directions is also superfluous and renders the future of the entire case uncertain. Both these provisions need to be completely struck off.
11) Section 7(8)- There is a provision made here that the Lokpal basing upon the facts gathered from its investigation, may issue a direction to a public authority for putting on hold the implementation of any decision or programme with a view to prevent the incidence of corruption; but the concerned public authority has been given freedom to comply with or reject the said direction issued by Lokpal. And in the event of rejection by the public authority, Lokpal may approach the concerned High Court to issue appropriate directions in the matter. Such provisions which allow a public authority indulging in corruption to reject the direction of Lokpal and which make a helpless Lokpal seek the directions of High Court in the event of rejection of Lokpal's direction by the public authority, are simply an antithesis of the very objective of Lokpal law i.s. strong deterrence to corruption indulged in by the public authorities and public servants. These provisions need therefore to be struck off.
12) Section 10 (4)- A provision should be inserted here for immediate issue of acknowledgement of the receipt of FIR lodged by any person to any office of Lokpal, and the information about it should be made available within 24 hours on the website of the Lokpal and a letter carrying the receipt of acknowledgement should reach to the Complainant within 7 days from the date of receipt of the Complainant.
13) Section 10 (5)- The provision made here that 'The investigation in any case shall not be closed by the investigative officer without recording reasons for such closure' is likely to be misused by the concerned investigative officer, who may, in order to close a case out of a corrupt motive, may write any reasons to justify the closure. Therefore, it is desired that in place of the expression 'without recording reasons for such closure', the expression 'without any speaking order to that effect received from the Chairman or a member of Lokpal' should be substituted.
14) Section 12 (Appeals against the orders of Lokpal)- It is a common knowledge that an appeal can lie against the order of any statutory authority before the concerned High Court as allowed under the writ jurisdiction of latter as per Article 226 of Constitution. There is thus no need to mention it through an explicit provision. Moreover, the rider mentioned in this Section that 'Ordinarily, High Courts shall not stay the order. However, if it does, it will have to decide the case within two months, else the stay would be deemed to have been vacated after two months and no further stay in that case could be granted' shall have no impact on the High Courts. This Section therefore dserves to be struck off altogether.
15) Section 15(5)- The provision that 'The final orders passed by the Complaints Authority will be subject to the writ jurisdiction of the High Court under Article 226 of the Constitution' is superfluous and deserves to be struck off.
16) Section 18 (Regulations to be made by Lokpal)- This Section requires Lokpal to notify 'regulations' to carry out the provisions of this Act. But as per Section 3(50) of General Clauses Act 1897, a Regulation can be made by President, and as per its Section 3 (51), Rule to be made under any Act may include a Regulation, which is invariably made by the appropriate Government i.e. Central Government or State Government. Thus, Lokpal which is a statutory authority has no power to make regulations. Thus the provision for Lokpal to make 'Regulation' is itself ultra vires the General Clauses Act 1897. It is suggested that the provision may be made for entrusting the appropriate Government with rule making powers in respect of the matters on which Rules need be made for ensuring proper functioning of Lokpal.
17) Section 18(2) (c )- Here Lokpal has been entrusted to make Regulation in respect of time-period required for completing investigation and enquiry to be ordered by Lokpal. However, as a matter of fact, this Bill has provided for time periods for execution of various activities and operations at the level of Lokpal (For instance, Chapter X – Timely Completion of Investigation and Trial for Corruption- Section 23). Moreover, time period for every activity/ operation is a critical element in a stringent anti-corruption law like the present one, and its determination can't be left to a small coterie of persons to do it in future in their way. Therefore, this Bill itself should prescribe time period in respect of every type of investigation or enquiry to be conducted by Lokpal.
18) Section 20 (1 &2) relating to time period for completion of investigation and trial- It has been proposed here that the time period for completion of an investigation shall ordinarily be six months, but never exceed 18 months. Then the trial period is proposed to be maximum 12 months. Thus, investigation and trial of a case of corruption shall together take 2 and half years, which is too long a time period by any reckoning in the current scenario when ultra modern equipments and methods can be applied to get at the bottom of the truth in any case at a rapid pace. It is worth noting here that when the campaign for Jan Lokpal Bill had started, it was promised by its protagonists that both investigation and prosecution of a case of corruption shall take a maximum period of 1 year from the date of lodging of the complaint. Large numbers of people influenced by such propaganda had rallied round Anna's campaign for Jan Lokpal Bill, and they still continue to harbor that hope. Moreover, the Preamble to the Bill speaks of 'expeditious' investigation and prosecution against the offenders. Thus, the time period to be provided here for investigation should be maximum six months to be followed by a trial to be completed within a maximum period of next six months.
19) Section 21 (Whistle blowers)- The time period of a month as mentioned under Section 21 (4) seems to be too long for the issuance by Lokpal of an order in the case of a whistle blower who has been subject to any physical harm, harassment or victimisation; it should be a week at best. The word 'immediately' occurring in Section 21 (4) has no meaning as such, and should therefore be defined.
20) Section 22 (3) (Penalties against Government Servant)- It is mentioned here that a Lokpal bench of Judicial Officers shall conduct an enquiry and also determine the penalty to be awarded against the concerned government servant proved guilty of corruption. But the decision of the bench will be subject to approval by a higher authority to be prescribed by the Lokpal by/through regulations. As a matter of fact, once a Government servant is held guilty of corruption and accordingly the decision to penalize him is taken by Lokpal, there is no need at all to subject the said decision "to approval by a higher authority', and that too when that 'higher authority' is yet to be prescribed by Lokpal by way of Regulation in future. A more pertinent question arises, can there be an authority higher than Lokpal in respect of power to punish the corrupt Government servants? It is therefore suggested that the provision for seeking the approval of the decision for penalty to the corrupt Government servants a from a 'higher authority' to be prescribed by Lokpal needs to be struck off.
21) Section 25(9)- Here a time limit is to be prescribed, within which the Lokpal after hearing the Grievance Redressal Officer would impose a penalty against him to the tune of maximum Rs.500/- per day's delay upto a maximum of Rs.50,000/-.
22) Section 31(2) providing for exception to observation of transparency in emergency case- Here it is mentioned that 'all contracts, public-private partnerships, transfer by way of sale, lease and any form of largesse by any public authority shall be done with complete transparency and by calling for public tender/ auction/ bids', but in emergency cases, such transparency norms may not be observed. In absence of any definition of 'emergency measure', it would so happen that the corrupt public servants in collusion with the outside vested interests shall always invoke the emergency clause to bypass the observation of transparency norms, and thereby continue their corrupt practices in respect of deals with corporate bodies as before. Under the circumstances, either the term 'emergency measure' be clearly defined or this exception be struck off altogether.
23) Section 27 (3) – Here it is mentioned that the Special Court shall determine inter alia the loss caused to any person by the act of corruption of the accused person. But there is no provision here or elsewhere in the Bill for compensating the said loss incurred by the concerned person due to an act of corruption. It is worth noting here that the campaigners of Jan Lokpal Bill used in earlier days to promise to the people that the loss incurred by any person due to corruption shall be adequately compensated by the Lokpal. Under the circumstances, the provision for compensation of the common man's loss caused by corruption be inserted under this Section.
24) Section 6 (g) (Rule making power) – It is mentioned here that Lokpal shall provide by rules for the terms and conditions of service etc of its officers and staff. But the question arises, whether a statutory authority like Lokpal shall enjoy the power to make rules at all, as per General Clauses Act 1897. If so, such terms as 'prescribe' and 'rule' should be defined under the Section 2 (Definition).
25) Section 18 (Powers of Lokpal to make Regulations – Chapter VIII)- It is mentioned here that Lokpal may by notification make regulation to carry out the provisions of the Act, and the said regulations after being framed shall be laid before each House of Parliament. Such regulations may be made in respect of such matters as creation of different wings to deal with different subjects, procedure of enquires into complaints against its officers and staff, time period for completion of enquiries and investigations, work norms of officers and staff of Lokpal etc. But the question arises, whether Lokpal as a statutory authority shall enjoy the power to make Regulations as per General Clauses Act 1897. If so, the term 'Regulation' should be defined under Section 2 itself before its use anywhere else in the Act.
26) A single, integrated Jan Lokpal Bill for both Centre and States necessary- The current version of Jan Lokpal Bill (V 2.3) has been structured basically for addressing to public authorities at Central level. However, a footnote appearing at the end of the Bill says that similar provisions as are necessary for public authorities at State level are to be incorporated into this draft Bill. It is suggested that the Jan Lokpal Bill be redrafted right now for bringing out a comprehensive Bill providing for both Centre and States, before it is taken up for enactment in the Parliament.
27) Provision for burden of proof to lie on the accused- The Bill should clearly state at appropriate places, especially in Chapter-IV (Proceedings of Lokpal- Section 10) that in all proceedings the burden to prove that he has not committed an act of corruption shall lie on the public servant against whom a complaint of committing an act of corruption has been lodged.
28) Judiciary to remain within the purview of Lokpal- Though the Jan Lokpal Bill V 2.3 covers the entire judiciary within its purview, Anna Hazare while consenting to end his fast on 28th Aug last agreed to Government's proposal not to insist on its coverage within Lokpal's purview on the ground that a separate Bill called Judicial Standards and Accountability Bill 2010 now pending in Parliament could serve the purpose of containing corruption within the judiciary. But the Team Anna has not yet critiqued the said Bill for its omissions and commissions. As such, nobody knows for sure as of now, whether the said Bill would effectively contain corruption and ensure proper observance of standards and accountability within judiciary. Under the circumstances, until and unless the issues relating to acceptance of pending Bill on Judicial Standards and Accountability are settled, the Jan Lokpal Bill V 2.3 should continue to insist on retention of judiciary within the purview of Lokpal as before.
29) Legal Aid to the complainants from indigent and marginalized sections- Just as in the case of other laws, vast numbers of people of our society would be unable to avail the provisions of this law mainly due to poverty, illiteracy and lack of exposure to litigation forums. However, such people are the worst victims of corruption in every sphere of public life. It is therefore essential that adequate provisions for wide-scale dissemination of the Lokpal law in local language, helpline services and legal aid for engaging spokespersons during hearings etc. should form a part of this Bill.
30) Draft Bill to be purged of Silly Errors- The Draft Bill contains a number of sill errors, which need to be removed at once. The following are a few instances of such silly errors-
(a) Section 2(h)- The word 'grievance' is to be replaced by the word 'complaint'.
(b) Section 2 (m) - The expression 'legal; action' occurring in last sentence of the paragraph is to be replaced by 'legal action'.
(c) Section 3- The word 'amended' should be replaced by 'over-ridden'.
(d) Section 4(10) – The expression 'impeccable integrity and record of public service particularly in the field of fighting corruption' should be defined.
(e) Section 4 (21) (i)- The expression 'office or profit' should be replaced by 'office of profit'.
(f) Section 20 (1) – The word 'extend' shall be replaced by the word 'exceed'.
(g) Section 26(2) – It is mentioned here, "The Board shall finalise the Lokpal's budget in such manner that it is less than ¼ % of the total revenue of the Government of India." It is an absurd expression, since it may mean any amount, even Re.1/-.
(h) Section 32- The expression 'anti-corruption Branch' should be replaced by the expression 'investigative branch'.
List of Participants-
1) Ashok Kumar Dalai Advocate Mob- 9437195504
2) Hemanta Kumar Mohanty -do- 9338944244
3) Bipin Bihari Ray -do- 9438368234
4) Promod Kumar Nayak -do- 9861049085
6) Diptendu Sundar Ray -do- 9861135620
7) Asit Kumar Jena -do- 9937165840
8) Nigamanand Das -do- 9861385236
9) Subha Bikash Panda -do- 9437033534
10) Tushar Kant Nayak -do- 9437205305
11) Bibhu Prasad Tripathy -do- 9437012460
12) Rabindra Kumar Sahu -do- 9937503817
13) Gyan Ranjan Ray -do- 9861332805
14) Rajendra Kumar Dash -do- 9861395562
15) Jajati Keshari Swain -do- 9861047459
16) Rashmi Kanta Muduli -do- 9853291318
17) Prajesh Mshra -do- 9437462556
18) Dipak Kumar Mohapatra -do- 9853458904
19) Narayan Barik -do- 9861355355
20) Kshirod Rout -do- 9438613203
21) Govind Bhagaban -do- 9437959153
22) Chitta Ranjan Behera -do- 9437577546
23) Jugal Kishore Nayak BJD Party 9437404088
24) Bansidhar Rout Retd OAS (1) 9437462722
25) Sahanaj (Mrs.) Banu Congress 9338510780
26) Sk. Kalimulaha Lecturer 9338510780
27) Dalli (Mrs.) Dash Secy Project Swarajya 9437021247
28) Adhiswar Nanda Prasad Social Worker 8763423716
29) Krushna Chandra Samantaray -do- 8093173889
30) Saroj Kumar Mohapatra -do- 9592235284
31) Arabind Parida -do- 9238520505
32) Govind Dash Rourkela 9861362926
33) Samikshya (Ms) Sthitapragyan Student 8895295378
34) Raj Kishore Singh Secretary JD (U), Orissa Unit 9338683595
35) Dharitree (Mrs.) Dash Social Worker 9090464649
36) Sharmistha (Mrs.) Rout Project Swarajya 8895295378
37) Lalit Mishra Orissa People's Vigilance Council 9861186403
38) Anant Bihari Routray Editor, Grahak Seba (Magazine) 9438785290
39) Jhili (Ms.) Manik Project Swarajya 9178557800
40) Brahmanand Swain Lecturer 8018161274
41) Ashok Kumar Nanda Social Activist 9437005133
42) Bikram Swain -do- 9438677224
43) Ajit Rana Reborn, Cuttack 9040133502
44) Sunita (Ms.) Samal Project Swarajya 6712412357
45) Gangadhar Baral Project Swarajya 9040683552
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