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LATEST NEWS UPDATES | Poles apart by V Venkatesan

Poles apart by V Venkatesan

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published Published on Jun 30, 2011   modified Modified on Jun 30, 2011

The Joint Lokpal Bill Drafting Committee concludes its meetings without any agreement on major issues.

ON June 21, as the five government representatives and the five civil society members of the Joint Lokpal Bill Drafting Committee ended their deliberations after exchanging their versions of the draft Lokpal Bill, the battle lines were clearly drawn. The government was in no mood to agree with the civil society members led by Anna Hazare (known as Team Anna) on the salient aspects of an effective Lokpal. Team Anna, on the contrary, expressed its complete disappointment with the government version and threatened an indefinite fast by Anna Hazare from August 16 on the issue.

Indeed, the June 30 deadline for preparing a joint draft, agreed to by both the government and the civil society members of the committee, appeared to be of no consequence as both sides adopted intransigent positions on many aspects of the Bill.

The joint committee never raised any expectation that its deliberations, held in the course of the past two months, could result in a joint draft leading to an effective Lokpal, which has eluded the nation for the past four decades.

But the meetings helped both the government and civil society members in different ways. The government managed to buy time and stave off an immediate crisis following Anna Hazare's “indefinite fast” launched on April 5 demanding the formation of a Joint Drafting Committee. It could seek to expose the divisions within civil society over the manner in which Team Anna claimed the membership of the Joint Committee and challenge its legitimacy in drafting laws along with the government and Parliament. It also used the failed meetings to convey that the Jan Lokpal Bill prepared by Team Anna had several controversial provisions on which there was no agreement even within civil society.

On the contrary, Team Anna is delighted that the meetings have created a countrywide yearning for the institution of Lokpal as an effective remedy for corruption and an unprecedented awareness among citizens about the pros and cons of a law on that matter. The members of Team Anna are confident that these achievements of the campaign will help in the fight against corruption in the days ahead.

These strategies of the government and Team Anna were evident in the way they responded to the outcome of the meetings. The government decided to consult political parties and Chief Ministers on the two different drafts of the Bill before getting the Cabinet to clear a final draft for introduction in Parliament. The government's intention is clearly to isolate Team Anna from the political class as such and neutralise any probable image loss that the government might suffer in view of its refusal to accept Team Anna's version of the Lokpal Bill. The government's decision to postpone the beginning of the monsoon session of Parliament to August 1, to many observers, stems from this compulsion to buy extra time for political management on the Lokpal issue ahead of the session.

Three government nominees on the panel – Ministers Kapil Sibal, Salman Khursheed and M. Veerappa Moily – in their press conference on June 21 identified the following major differences with Team Anna:

Twenty-three Chief Ministers wanted the Lokayukta to remain under their domain, and not under the Lokpal.

Members of Parliament and State Assemblies enjoy protection of speech and voting under the Constitution and therefore cannot be subjected to the jurisdiction of the Lokpal if there are allegations of bribery against them in connection with their conduct in the House.

Team Anna's version of the Lokpal will create a parallel executive body outside the government, answerable to nobody, and therefore it is not acceptable.

Team Anna's answers to each of these specific claims made by the government were persuasive. At a press conference in New Delhi on June 22, Hazare asked Sibal whether he would consider the Election Commission and the Supreme Court as parallel executive bodies which were answerable to none. These were autonomous institutions and their autonomy was vital to democracy, he said. What his team wanted was a similarly autonomous Lokpal, which would be subject to checks and balances, he suggested.

According to Team Anna, taking a bribe to vote or speak in Parliament or in the State Assemblies strikes at the foundations of Indian democracy. Therefore, the government's refusal to bring it under the Lokpal's scrutiny virtually gives a licence to MPs to take bribes with impunity, Team Anna argues.

The government wants criminal investigations into allegations against MPs and MLAs to be left to the Speaker of the House in view of the Supreme Court's judgment. In the JMM bribery case, the court had held that an MP taking a bribe for voting was protected by parliamentary privilege. Team Anna wants the Lokpal Bill to overrule legislatively this flawed judgment as, in its view, taking bribes or committing crimes for speaking and voting in Parliament or State Assemblies cannot be protected by legislative privilege.

The Jan Lokpal Bill, prepared by Team Anna, provides for a Lokpal at the Centre and Lokayuktas in the States. Such a model already exists with the Right to Information Act, 2005, creating State Information Commissions apart from the Central Information Commission. This, according to Team Anna, clearly suggests that if Lokayuktas are to be created by the States independently from the Lokpal, it will create an anomaly.

But the most contentious issue is whether the Lokpal should have the powers to investigate allegations of corruption against the Prime Minister. The government feels that such powers will make an incumbent Prime Minister dysfunctional, and therefore it wants to keep the Prime Minister out of the Lokpal's purview.

Team Anna claims that the Prime Minister does not enjoy any immunity from investigation even without a Lokpal. The apprehension that the Prime Minister may face a series of frivolous and mischievous complaints is incorrect, it argues. The Jan Lokpal Bill, drafted by it, suggests that a full Bench of the Lokpal will first decide whether to accept a particular complaint by determining whether there is a prima facie charge against the Prime Minister, and a complainant will be severely fined if the complaint turns out to be false or unsubstantiated.

Shanti Bhushan, co-chairperson of the committee, pointed out to Pranab Mukherjee that the government had ratified the U.N. Convention Against Corruption (UNCAC) and that it was under an international legal obligation to ensure that the Lokpal Bill was in line with the convention. The convention requires that any public servant falling in the definition of ‘public official' in Article 2(a) is covered by the Lokpal Bill. This definition clearly included the Prime Minister, judges, MPs and all public officials irrespective of their rank, he argued.

Article 2(a) of the convention says:

“‘Public official' shall mean: (i) any person holding a legislative, executive, administrative or judicial office of a State party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person's seniority; (ii) any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the State party and as applied in the pertinent area of law of that State party; (iii) any other person defined as a ‘public official' in the domestic law of a State party. However, for the purpose of some specific measures contained in chapter II of this convention, ‘public official' may mean any person who performs a public function or provides a public service as defined in the domestic law of the State party and as applied in the pertinent area of law of that State party.”

Adopted by the U.N. General Assembly in 2003, the convention came into force in December 2005. India, which signed the convention in 2005, ratified it only in May this year.

Shanti Bhushan also brought to Pranab Mukherjee's notice that Article 3 of the convention provides for investigation and prosecution of corrupt public servants, apart from freezing, seizure and confiscation of the proceeds of corruption. Article 6(2) requires that the anti-corruption body, which is responsible for the above, be independent.

The government's stance against inclusion of the Prime Minister in the Lokpal's ambit surprised Team Anna because the government had included the Prime Minister in the first version of its own draft Bill, with some exceptions.

The issue of the Lokpal investigating allegations against the Prime Minister has divided civil society too. At a public consultation held by the Foundation for Media Professionals (FMP) in New Delhi on June 5, Justice A.P. Shah, former Chief Justice of the Delhi High Court, wanted safeguards because, he said, the Prime Minister was the “face of the nation”.

Any inquiry against him/her could affect the credibility of the nation, he said. According to him, a full Bench of all 11 members of the Lokpal must hear the case against the Prime Minister and two-thirds of them must support the decision to prosecute.

The President should be the sanctioning authority (without advice from the Council of Ministers), he suggested.

It is doubtful, however, whether giving the President the discretion to provide sanction to prosecute the Prime Minister will satisfy Team Anna. If there were a corrupt Prime Minister, was there not a distinct possibility of him/her becoming a conduit for receiving bribes on behalf of all his/her ministerial colleagues if immunity were granted to him/her, Shanti Bhushan asked Pranab Mukherjee. Kiran Bedi argued that excluding the Prime Minister from the Lokpal's ambit would make him/her negligent (as in the 2G spectrum scandal), if not corrupt.

The government and Team Anna are also divided over the question of whether the Lokpal should investigate allegations of corruption against Supreme Court and High Court judges. Team Anna has revealed that under the present system, the Chief Justice of India has given permission to register a first information report (FIR) against sitting judges only in two cases in the past 20 years despite allegations of corruption against so many of them. The team, therefore, wants the Lokpal Bill to provide a Bench of seven members, with the majority of them drawn from the judiciary, to grant permission to register an FIR in such cases. The government did not agree to this suggestion and kept the judiciary out of the Lokpal's purview in its draft Bill.

The government wants allegations of corruption against judges investigated under the proposed Judicial Accountability Bill (JAB). Team Anna is not opposed to this if a strong and effective JAB is considered and enacted simultaneously.

Legal researcher Usha Ramanathan, who participated in the FMP's public consultation, dissents from Team Anna on this. According to her, the higher judiciary has become introspective after all the noise about judicial misconduct and corruption. While she agreed that there was a need for an independent oversight body, she did not consider the Lokpal the appropriate mechanism for that.

The government has suggested that the Lokpal concentrate on higher-level corruption alone. But Team Anna wants one agency to deal with corruption at all levels. It has pointed out that the Lokayuktas in most States deal only with corruption at the higher levels, at the level of politicians, and this model has failed. On this, too, there are differences within civil society.

The government also does not agree with Team Anna's demand that the Lokpal merge with itself the Central Bureau of Investigation (CBI), the Central Vigilance Commission (CVC) and the Vigilance Departments. Team Anna feels that if the government keeps them under its control to maintain their distinct identity, that will undermine the Lokpal's independence.

The government's stiff resistance to bringing lower-level bureaucracy under the Lokpal's ambit appears to be an excuse to retain control over the CBI, because if all public servants are brought under the Lokpal's jurisdiction, as proposed by Team Anna, the government will have no justification to keep the CBI. The government's recent decision to include the CBI among the list of organisations being kept out of the purview of the Right to Information (RTI) Act has exposed its intentions in this regard, says Arvind Kejriwal, a member of Team Anna.

At its press conference on June 22, Team Anna exposed other serious flaws in the government's draft. Team Anna's draft has proposed that violation of citizen's charter by a government servant should be penalised and should be deemed to be corruption. Team Anna has claimed that the government, after agreeing to this proposal, did not include this in its draft.

Team Anna also claims that the government agreed to the broad-based selection committee, proposed by it, even though there was disagreement on the composition of the search committee that was to suggest suitable names to the selection committee. Team Anna has alleged that with five out of 10 members of the selection committee coming from the ruling establishment and with six of the 10 members being politicians, the government has ensured that only weak, dishonest and pliable people would be selected as members of the Lokpal. (The Selection Committee, according to the government's draft, comprises the Prime Minister, the Speaker of the Lok Sabha, the Leader of the House other than the House in which the Prime Minister is a Member of Parliament, the Home Minister, the Leaders of the Opposition in the Lok Sabha and Rajya Sabha, a judge of the Supreme Court and a Chief Justice of a High Court, to be nominated by the Chief Justice of India, the President of the National Academy of Sciences, and the Cabinet Secretary.)

Team Anna's version, on the contrary, proposes two politicians, four judges, and two independent constitutional authorities on the selection committee.

Besides, the selection committee has been empowered in the government's draft to choose the members of the search committee, making it a pawn of the selection committee. Team Anna's draft proposes an independent search committee consisting of retired constitutional authorities to prepare the first list. While Team Anna proposes a detailed, transparent, participatory selection process, the government's draft provides no such process.

‘A hoax'

Kiran Bedi calls the government's draft a hoax, because it turns the Code of Criminal Procedure upside down by providing special protection to the accused. According to the government's draft, after preliminary inquiry, all evidence will be provided to the accused and he or she shall be heard as to why an FIR should not be registered against him or her. After completion of investigations, again all evidence will be provided to the accused, who will be given an opportunity to explain why a case should not be filed against him or her in court. Team Anna has expressed serious concern over this provision of the government's draft as it would compromise investigations. He fears that if evidence is to be made available to the accused during investigation, that will expose the whistle-blowers, thus compromising their security.

Team Anna has also criticised the government's draft for not delegating the Lokpal's power to officers working under it so that the Lokpal could hear only cases against senior officers and politicians or cases involving huge amounts. As members of the Lokpal would not be able to hear all cases, they would soon be overwhelmed, Team Anna has warned.

Scrutiny of the government's draft has brought out a ridiculous anomaly to Team Anna: it proposes a minimum punishment of six months' imprisonment for a corrupt official but prescribes two years' minimum imprisonment for a false, frivolous and vexatious complainant. Besides, the government would meet the legal expenses of the accused in fighting the case against the ‘false' complainant, who would also have to pay compensation to the accused.

Surely, the government has a lot to answer for producing this indefensible draft Bill, just in order to upstage Team Anna.

Frontline, Volume 28, Issue 14, 2-15 July, 2011, http://www.frontline.in/stories/20110715281402900.htm

Tagged with: lokpal bill



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