wonderful exposition of facts. let us spread this far and wide
Amitabh
--- On Fri, 4/29/11, Chitta Behera <chittabehera1@yahoo.co.in> wrote:
From: Chitta Behera <chittabehera1@yahoo.co.in>
Subject: Re: [Arkitect India] Lokpal- Gateway to the Promised World ?
To: "Amitabh Lucknow" <amitabhthakurlko@gmail.com>
Cc: arkitectindia@yahoogroups.com, amitabhth@yahoo.com, focusorissa@yahoogroups.com, social-watch-group@googlegroups.com, common-concern@googlegroups.com, oregs-watch@googlegroups.com, odishasoochanaadhikarabhiyan@googlegroups.com, humjanenge@yahoogroups.co.in, rti_india@googlegroups.com, "National RTI Forum" <nationalrtiforum@gmail.com>, "India RTI" <indiarti@yahoogroups.com>
Date: Friday, April 29, 2011, 5:45 PM
Jan Lokpal Bill, can it rein in a corrupt politician? Dear Mr.Thakur, Thanks for your candid response approving of the fact that there exists a big hiatus between what most people innocuously think about Jan Lokpal Bill prodded by the hyperboles fanned out by the IAC team on www.indiaagainstcorruption.org and what actually transpires to a studious reader after he or she seriously goes through the weird letters of its bare text. To recapitulate, the last mail 'Jan Lokpal Bill – can it rein in a corrupt government servant?' strived to drive home the queer provisions made in the Bill, thanks to which Lokpal would never be able to fix any allegedly corrupt official even at the investigation stage, let alone penalize him by way of fine, disciplinary action or imprisonment. Now, let us see if Jan Lokpal has any teeth whatsoever to bite a corrupt politician. In order not to be judgmental in our probe into this all-important question, we need first of all to recapture the very rationale made out by the protagonists of the alternative Bill vis-à-vis the official Bill in the founding meeting held on 10 August 2010 at Delhi, which was attended among others by Justice Santosh Hegde, Mr.Prashant Bhushan and Mr.Arvind Kejriwala the 3 civil society members of the present Joint Drafting Committee. After critiquing the existing anti-corruption regime, the said meeting had envisaged that the would-be Lokpal of their genre (now called Jan Lokpal), unlike today's CVC which is merely an advisory body and that too with a limited jurisdiction over bureaucrats only, can get its decisions enforced against corrupt bureaucrats and politicians as well. Further, the would-be Lokpal they envisaged would be an independent and autonomous powerhouse unlike today's CBI, which has though teeth to bite both politicians and bureaucrats, takes instruction from its political bosses as to whom to bite, when and to what degree. (vide Minutes of Meeting). A catchy brochure 'The Salient Features of Jan Lokpal Bill' hung on the website of www.indiaagainstcorruption.org, which is so to say the much touted manifesto of the proposed Jan Lokpal Bill, assures us as follows, "Investigations in any case will have to be completed in one year. Trial should be completed in next year so that the corrupt politician, officer or judge is sent to jail within two years . . . the loss that a corrupt person caused to the Government will be recovered at the time of conviction". And mind you, this is the kernel of the new illusion that instantly mobilized millions of people across the country to rally behind Anna Hazare's clarion call for enactment of a strong anti-corruption law in the shape of Jan Lokpal Bill. But as irony would have it, in the heat of euphoria most of the people who either supported the Bill or opposed it at that point of time didn't care to read its provisions, let alone scan or critique the same. Now that the phase of frenzied hullabaloo has visibly waned for various reasons beyond the control of anybody, the moot question arises, do the provisions made in the Jan Lokpal Bill fall in sync with the assurances dished out by IAC Team? To start with we need too ascertain whether the much trumpeted Bill has any teeth to bite any politician, be he Prime Minister, a Ministers, a Member of Parliament or such constitutional functionaries as President, Vice President or Speaker of Loksabha. Firstly, the proviso to Section 18 (8) says, "Provided that the provisions of this section shall not apply to the Prime Minister". The Section-18 is captioned as 'Provisions relating to complaints and investigations'. Thus, going by the above proviso, no complaint can be lodged against the Prime Minister nor any enquiry or investigation whatsoever made into his conduct by the would-be Jan Lokpal. Secondly, the Section 18(8) says that even if the allegation of corruption against a Minister is substantiated and he should therefore not continue to hold that post, 'Lokpal shall make such recommendation to the President, who shall decide either to accept such recommendation or reject it within a month of its receipt". In case the President rejects the recommendation of Lokpal for removal of the concerned Minister, Lok Pal is left with no option to do anything about it. Thirdly, as per Section 28B (2), "For an allegation against a Member of Parliament that he has taken a bribe for any conduct in Parliament, including voting in Parliament or raising question in Parliament or any other matter, a complaint could be made to the Speaker of Lok Sabha or the Chairperson of Rajya Sabha, depending upon the House to which that member belongs". Then it is said that a complaint of such nature shall be forwarded to the Ethics Committee within a month of its receipt, and then "The Ethics Committee shall, within a month, decide whether to . .". It is interesting to know that the last line is still an incomplete sentence conveying no meaning whatsoever. Is it a grammatical slip or a moral slip? What is striking above all is that there is no mention of the word 'Lokpal' in the entire provision. It clearly implies that Lokpal has no power to receive, let alone dispose of a complaint of corruption against a Member of Parliament in respect of his conduct in Parliament. Fourthly, the sub-section (2) of Section 17 says, "Nothing in this Act shall be construed as authorising the Lokpal to investigate any action which is taken by or with the approval of the Presiding Officer of either House of Parliament". Thus not only any alleged act of corruption by the Speaker or Chairman of Rajya Sabha himself, but also that of any Minister, MP or official who are in league with the Speaker of Loksabha or Chairman of Rajya Sabha shall enjoy immunity from the investigative scanner of Lokpal. Fifthly, the definition of 'Public Servant' as provided under Section 2(11) is not inclusive of such constitutional authorities as President, Vice-President and Speaker of Lok Sabha, and as such these politicians in the guise of constitutional authorities remain outside the jurisdiction of Lokpal. Sixthly, though Section -15 (Making a complaint to the Lokpal) in its sub-section (1) says inter alia that "any person may make a complaint under this Act to the Lokpal", the sub-section (1) of Section 8 (Functions of Lokpal) provides no scope to Lokpal for receiving complaints against Judges or Minister/MPs. Seventhly, Section 18(iii) says, "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 the investigation". It plainly means that the very alleged act of corruption by a public servant, be he a Minister, MP, Officer or a Judge, into which Lok Pal may be investigating, shall continue in force as before and that too with the unfettered continuance of the impugned act by all other concerned public servants. Eighthly, in a similar vein Section 18(iv) says, "If, during the course of a preliminary inquiry or investigation under this Act, the Lokpal is prima facie satisfied that the allegation or grievance in respect of any action is likely to be sustained either wholly or partly, it may, through an interim order, recommend the public authority to stay the implementation or enforcement of the decision or action complained against, or to take such mandatory or preventive action, on such terms and conditions, as it may specify in its order to prevent further harm from taking place". Here the word 'action' as defined in Section 2(1) may include an alleged act of corruption by any public servant, be he a politician, bureaucrat or a judge. Then it goes on to say, "The public authority shall either comply with or reject the recommendations of Lokpal under this sub-section within 15 days of receipt of such an order". If the concerned public authority rejects such recommendation, which is very much likely to happen, a nonplussed Lokpal, "if it feels important, may approach appropriate High Court for seeking appropriate directions to the public authority". Thus, any small or big public authority has been privileged with the discretion to reject Lok Pal's recommendation, and alternatively, once the case moves on to High Court at the instance of Lok Pal himself, there is no predictability about the time-limit or ultimate outcome of the case so lodged in the High Court, since either party, who might lose at the level of High Court, may move the Supreme Court to vindicate his position vis-à-vis that of the opposite party. Ninthly, the Jan Lokpal Bill in its Section 18(vii) says, "The Lokpal may, at any stage of inquiry or investigation under this Act, direct through an interim order, appropriate authorities to take such action as is necessary, pending inquiry or investigation.- (a) to safeguard wastage or damage of public property or public revenue by the administrative acts of the public servant; (b) to prevent further acts of misconduct by the public servant; (c ) to prevent the public servant from secreting the assets allegedly acquired by him by corrupt means." Then like in some previous instances, the public authority is privileged with the discretion to 'comply with or reject the recommendations of Lokpal . . . within 15 days of receipt of such an order'. In the event of rejection of such recommendation, Lokpal, as in earlier instances, 'if it feels important, may approach appropriate High Court for seeking appropriate directions to the public authority', thus leading to endless lingering of the case at different levels with the public servant being enabled to carry on his acts of misappropriation of public wealth, misconduct and stashing of black money in safe havens. Tenthly, the Section 8(1) describes the types of complaints that 'Lokpal shall be responsible for receiving'. Though it includes a specific mention of complaints against misconduct by Government servants as receivable by the Lokpal, it refrains from making a specific mention of complaints against politicians like Minister or MP To sum up, the Jan Lokpal Bill leaves no scope for any citizen to lodge a complaint against any person of the ruling political tribe, be he a Member of Parliament, Minister or Prime Minister, or Speaker, Vice-President and President, not to talk of penal action against then in two years of the receipt of the complaint. This is the stark reality of Jan Lokpal Bill as against the diehard myth built around it by IAC team.
Looking forward to your informed response, With regards, Chitta Behera Cuttack , Orissa Mobile : 9437577546
From: Amitabh Lucknow <amitabhthakurlko@gmail.com>
To: Chitta Behera <chittabehera1@yahoo.co.in>
Cc: arkitectindia@yahoogroups.com; amitabhth@yahoo.com
Sent: Mon, 25 April, 2011 7:41:25 AM
Subject: Re: [Arkitect India] Lokpal- Gateway to the Promised World ?
thanks a lot Chitta ji, It was really interesting going thru ur mail and a completely new revelation. Was hugely impressed by it. yes, I shall try to take this discussion further, to have further clarifications emerging on both the sides. On 25 April 2011 02:27, Chitta Behera <chittabehera1@yahoo.co.in> wrote: 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
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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