[rti_india] Re: [RTI INDIA] Fw: Fwd: Draft NCPRI submissions on the Lokpal Amendment Bill

Dear Chitta

Thanks for your insightful observations.

I feel that NCPRI should not dignify this scandalous and outrageous
piece of "law", which has been imposed on India through US and World
Bank financed lackeys, by our participation.

Sarbajit
Co-Convenor
NCPRI
www.ncpri.org

PS: please activate the CR+LF option in your email client, see below..

On 2/22/15, 'Chitta Behera' via RTI India : Right to Information, CIC
<rti_india@googlegroups.com> wrote:
>
>
> On Sunday, 22 February 2015 5:59 PM, Chitta Behera
> <chittabehera1@yahoo.co.in> wrote:
>
>
> Request to NCPRI: Please reread Clause 9 ofLokpal Amendment Bill 2014On
> perusal of NCPRI's timely submission on the Lokpal andLokayuktas Amendment
> Bill 2014 to the Parliamentary Standing Committee we theactivists of Odisha
> Lokayukta Abhijan agree to its overall tenor except inrespect of one matter
> i.e. its recommendation concerning Clause 9 of the Bill whichseeks to
> partially replace Section 4BA that was inserted in the DSPE Act 1946by way
> of Amendment to that Act effected by the Lokpal and Lokayuktas Act
> 2013. First of all, the Lokpal Act 2013 amended the DSPE Act 1946(that
> governs the constitution and functioning of country's premierinvestigating
> agency viz. CBI) with a view to ensuring that the Director CBI inorder to
> act freely, fairly and fearlessly in investigating any case ofcorruption
> referred to him by Lokpal orany other competent authority (such as Supreme
> Court, any of the High Courts,Central Government or any State Government )
> would henceforth be selected by anapex committee comprising PM, Leader of
> Opposition and Chief Justice of India (infulfilment of a long standing
> demand for several decades for transforming CBIfrom a servile tool of the
> Government to an independent and autonomous body, thatserved as the main
> driver of recently unfolded Anna inspired anti-corruptionmovement
> culminating in enactment of Lokpal Act 2013). Secondly the Act of 2013also
> ensured that every complaint of corruption held genuine through enquiryand
> investigation by the Director CBI would be subject to prosecution by
> theDirector Prosecution in the designated Courts for punishing the corrupt
> publicservants in a time-bound manner as laid down in the said Act. To
> achieve thisintegrated objective i.e. completion of investigation
> immediately followed bythe prosecution, the Act of 2013 justifiably made the
> provision in 4BA (2) ofDSPE Act that 'The Director of Prosecution shall
> function under the overallsupervision and control of Director' (meaning
> Director CBI). In fact this Actcreated a new Directorate of Prosecution
> within the DSPE structure, with itsfocus being the time-bound prosecution
> and punishment of the public servantsheld guilty of corruption by the
> investigation conducted by the CBI. Arguedfrom a reverse position, in the
> absence of a dedicated prosecution directorate towork under the control of
> Director CBI the very promise of the Lokpal Act for atime-bound punishment
> to the corrupt public servants would remain only apipedream. It seems the
> NCPRI has erred in confusing the DirectorProsecution mentioned in the
> Amendment to DSPE Act (Section 4BA) effected byLokpal Act 2013, with the
> Director Prosecution mentioned in Section 12(Prosecution Wing) of the said
> Act. Let it be made absolutely clear that thesetwo Directors of Prosecution
> are not the one and same entity, but two separateentities having two
> separate modes of appointment and two separate mandates. Whilethe latter
> (Section 12 of Lokpal Act) is a wing of Lokpal constituted by Lokpalitself
> with the sole mandate to prosecute the cases of corruption on the ordersof
> Lokpal, the former (Section 4BA of DSPE Act) though bearing the
> samenomenclature i.e. Director Prosecution, happens to be the head of a
> Directorateof Prosecution, to be appointed on the recommendation of CVC but
> to functionunder the control and supervision of Director CBI, for the
> purpose ofprosecuting not only the cases of corruption if and when referred
> by Lokpal(vide Section 20-8) but also for prosecuting all cases of crime
> including thatof corruption on the orders of Director CBI. Thus the Director
> Prosecutionacting under the Director CBI (Section 4BA of DSPE Act) has a
> much widermandate than that of Director Prosecution acting under Lokpal
> (Section 12 ofLokpal Act). It goes to the credit of Lokpal Act 2013 that
> this Act true to itsall-encompassing anti-corruption mission, provided for a
> dedicated prosecution directoratefor CBI while putting in place a dedicated
> prosecution wing for Lokpal. It is howeverdisconcerting to note that the
> Lokpal Amendment Bill 2014 very cunningly seeksto dismantle the integrated
> investigation-cum-prosecution system which finds embodiedin the single,
> reconstituted structure of CBI made possible through amendmentto DSPE Act
> 1946 as laid down in the Schedule to the Lokpal Act 2013. Firstly,the Clause
> 9 of the said Bill deletes the provision of 'overall control andsupervision'
> to be exercised by the Director CBI over the Director Prosecution,creating
> thereby necessary space for the Government to exercise the control
> andsupervision over the Director Prosecution. Next, the said Clause of the
> Bill allowsthe Director Prosecution to hold differences of opinion from that
> of the DirectorCBI, which implies that even if the Director CBI has proved a
> public servantcorrupt through his investigation, the Director Prosecution
> may simply refuseto prosecute him in the Special Court citing the new
> clause. In the ensuingstandoff between the two Directors the proven case of
> a corrupt public servantwould enjoy the virtual protection from any manner
> of trial or punishment inthe post-investigation period. The next provision
> of the Clause 9 is further reprehensiblesince it provides for such
> differencesof opinion to be "referred to the Attorney-General for India for
> his advice,and his advice shall be final and binding". Needless to say,
> theAttorney-General is basically an appointee of the Central Government
> andtherefore whatever advice he would tender in the context of the
> abovedifferences of opinion can't but be in line with the wish of
> theGovernment-that-be. Further, to render the subjugation of the
> DirectorProsecution under the Governmental control foolproof, the Clause-9
> of the Billprovides, "The annual performance appraisal report of the
> Director ofProsecution shall be recorded and maintained in the Ministry of
> Law andJustice, in such manner as may be prescribed.". Thus, the Bill aims
> atreducing the Director Prosecution to a servile tool of the Government, who
> can renderthe Director CBI a virtually dysfunctional executive and his
> charge-sheet againsta corrupt public servant meaningless by exercising his
> right to differences ofopinion with Director CBI, by his obligation to
> adhere to the decision ofAttorney General and by his unwritten loyalty to
> the concerned Ministry of theCentral Government which maintains his APAR.
> The nation would thus be pushed backto the square one, i.e. Governmental
> control over prosecuting agencies, againstwhich the anti-corruption crusade
> spanning several decades since mid-sixties oflast century had marched
> forward culminating in the enactment of historicLokpal and Lokayuktas Act
> 2013. As for the question who should maintain whose APAR it isworthwhile to
> mention that the APAR of a particular public servant should bemaintained by
> his/her controlling authority. In the instant case, therefore theAPAR of
> Director Prosecution working under the control of Director CBI needs tobe
> maintained by the latter, and that of Director Prosecution constituted
> andworking under Lokpal by the Lokpal. The proposal to entrust the
> maintenance ofAPAR of Director Prosecution to the Ministry of Law and
> Justice, GoI aims at makingit doubly sure that the Director Prosecution
> never falters in dancing to thechoreography of Central Government. While the
> NCPRI's submission on Lokpal Amendment Bill2014 is on the whole a valuable
> critique of the various problematic propositionsmooted therein, it seems to
> lack in a clear understanding of the highly cunningprovisions made in Clause
> 9 of the Bill on the innocuous pretext of providing functionalautonomy and
> independence to the Directorate of Prosecution vis-a-vis DirectorCBI. I wish
> the NCPRI fraternity to re-read the Clause and restate its positionthereon
> since this single clause of the Bill has the potential to decimate atone go
> not only the quintessence of historic Lokpal Act 2013 but also theentire
> fabric of an independent and autonomous investigating and prosecutingsystem
> that the said Lokpal Act had laboriously built up by way of amendingseveral
> archaic and flawed legislations. The above reading of Clause 9 of the Lokpal
> Amendment Bill2014 was arrived at in a Consultation Meet held at Bhubaneswar
> on 1stFebruary 2015 called on behalf of Odisha Lokayukta Abhijan, the
> details ofwhich are available in the two attachments being sent herewith.
> Chitta Behera, 22nd February 2015Odisha Lokayukta Abhijan, Cuttack,
> Mobile - 09437577546
>
>
> On Thursday, 5 February 2015 12:08 AM, Pradip Pradhan
> <pradippradhan63@gmail.com> wrote:
>
>
> ---------- Forwarded message ----------
> From: Venkatesh Nayak <nayak.venkatesh@gmail.com>
> Date: Wed, 4 Feb 2015 18:09:21 +0530
> Subject: Draft NCPRI submissions on the Lokpal Amendment Bill
> To: "ncpriworkingcommittee@googlegroups.com"
> <ncpriworkingcommittee@googlegroups.com>, Anjali Bhardwaj
> <anjali.sns@gmail.com>, Nikhil Dey <nikhildey@gmail.com>, Bhaskar
> Prabhu <mahitiadhikarmanch@gmail.com>, Dr Shaikh Ghulam Rasool
> <dr.shaikhgr@gmail.com>, Joykumar Wahengbam <joykwahengbam@gmail.com>,
> Rakesh Reddy Dubbudu <rakesh.dubbudu@gmail.com>, Amrita Johri
> <amritajohri@gmail.com>, shekhar singh <shekharsingh@gmail.com>,
> shailesh gandhi <shaileshgan@gmail.com>, aruna roy
> <arunaroy@gmail.com>
>
> Dear all,
> I have attached a draft submission on the Lokpal Amendment Bill for the
> consideration of the Working Committee. As agreed in a discussion with
> Anjali I have included submissions about the proposals only and not what
> has not been proposed in the Bill. Please send your comments to Manu at the
> Secretariat by 2pm tomorrow, to enable the finalisation of the submission
> by the evening.
> The 2nd attachment contains the comparative table I had sent out in
> December soon after the Bill was tabled in Parliament. The third attachment
> is the text of the Bill as introduced in the Lok Sabha. I have not attached
> the LL Act 2013 as I have put in the original provisions of the Act in the
> comparative table against the proposed changes.
>
> The deadline for sending comments to the Committee is 6th February, 2015.
> Thanks
> Venkatesh Nayak
> Co-Convenor
>
> --
> You received this message because you are subscribed to the Google
> Groups "NCPRIworkingcommittee" group.
> To unsubscribe from this group and stop receiving emails from it, send
> an email to ncpriworkingcommittee+unsubscribe@googlegroups.com.
> For more options, visit https://groups.google.com/d/optout.
>
>
>
>
>
>
> --
> You received this message because you are subscribed to the Google Groups
> "RTI India : Right to Information, CIC" group.
> To unsubscribe from this group and stop receiving emails from it, send an
> email to rti_india+unsubscribe@googlegroups.com.
> For more options, visit https://groups.google.com/d/optout.
>