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Monday, April 9, 2012

Lokpal Bill: A Drama Unfold

Lokpal Bill: A Drama Unfold


The Jan Lokpal Bill campaign began in January 2011 in the backdrop of the publicity that accompanied the several mega-scams that surfaced in 2010, notably those relating to the Commonwealth Games and the telecom spectrum allocations. It caught the public imagination with Anna Hazare's fast at Jantar Mantar in New Delhi in April 2011. That forced the UPA government to constitute a joint drafting committee for a Lokpal bill. The civil society representatives in the committee proposed a bill called the Jan Lokpal bill, which became the basis for discussions. The basic principles on which the bill was drafted were culled from the United Nations Convention against Corruption, which required all countries to put in place anti-corruption investigative agencies that would be independent of the executive government and would have the jurisdiction to investigate all public servants for corruption.



The Lok Sabha passed a historic Lokpal and Lokayuktas Bill, 2011, but defeated a parallel Constitution (116th Amendment) Bill, which would have given the Lokpal constitutional status. On December 22, the government introduced the Bill along with the Constitution (116th Amendment) Bill in the Lok Sabha. However the UPA government didn’t put it to vote in the Upper House. This Bill incorporated some of the recommendations of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice. This was a completely new Bill as the government had withdrawn its previous Lokpal Bill, which it introduced in the Lok Sabha on August 4, 2011, and later referred to the Standing Committee. The Standing Committee tabled its report on December 9, 2011. The August Bill did not propose to confer constitutional status on the Lokpal. The Standing Committee recommended constitutional status so that the Lokpal had higher stature and increased legitimacy. The committee believed that constitutional status would enhance the legal and moral authority of the Lokpal institution and also insulate the basic principles of the Lokpal from the vicissitudes of ordinary or transient majorities.



Yet, the Lok Sabha, which passed the Lokpal and Lokayuktas Bill with a few amendments, rejected the Constitution (116th Amendment) Bill, which required two-thirds majority of the House present and voting for its passage. The object of the Constitution Amendment Bill is laudable as it seeks to create an autonomous and independent Lokpal at the Centre and Lokayuktas in the States with powers of superintendence and direction over investigation and prosecution of public servants accused of corruption. Yet, it failed to secure the requisite support in the Lok Sabha because members found a huge gap between its object and the provisions of the Lokpal and Lokayuktas Bill.



During the debate in Parliament, the opposition was critical of the government's control over the selection and removal of members of the Lokpal. But the Standing Committee report shows that it wanted to dilute the provisions with regard to selection and removal in the Bill that was introduced in August. That Bill had proposed a nine-member selection committee, five of whom would have been government nominees. The Standing Committee recommended a four-member selection committee comprising the Prime Minister, the Speaker of the Lok Sabha, the Chief Justice of India (CJI), an eminent Indian nominated unanimously by the Comptroller and Auditor General (CAG), the Chief Election Commissioner (CEC) and the Chairman of the Union Public Service Commission (UPSC), and the Leader of the Opposition in the Lok Sabha. The December Bill proposes five members, of whom three should be government nominees – the Prime Minister, the Speaker, the Leader of the Opposition in the Lok Sabha – and the CJI or a judge of the Supreme Court nominated by the CJI, and one eminent jurist nominated by the President. Had the government accepted the Standing Committee's recommendation, it could have dented somewhat the opposition's criticism.



Though the Bill kept the CBI with the government, it allowed the Lokpal to have its own anti-corruption investigative body. It eliminated the need to get prior sanction for investigation from the government. It provided for the confiscation of the assets of corrupt public servants and the recovery of losses caused by their acts of corruption from them. But it created a terribly cumbersome procedure for investigation, by which a preliminary inquiry and hearing of the corrupt public servant were made compulsory before investigation could begin. This ended the possibility of making surprise raids and seizures on the premises of corrupt public servants or their abettors. The Bill of August provided that the Lokpal would have its own investigation and prosecution wings. The Standing Committee, however, sought to dilute this by recommending instead that the Lokpal conduct a preliminary inquiry, after which the Central Bureau of Investigation (CBI) would investigate. Also, the CBI would have autonomy over its investigation.



The committee also proposed that the Lokpal will have a supervisory role over the CBI in cases relating to Group A and B officers. The Bill of December further diluted these recommendations. The Lokpal, it says, shall refer a preliminary inquiry against Group A, B, C and D employees to the Central Vigilance Commission (CVC). The Bill further says that after conducting the inquiry, the CVC shall submit a report to the Lokpal in the case of Group A and B employees and proceed according to specified procedure in the case of Group C and D staff. The CVC, according to the current Bill, shall send periodic reports to the Lokpal on its cases.



The Rajya Sabha witnessed a sordid drama. Several parties which had walked out in the Lok Sabha (the Samajwadi Party and the Bahujan Samaj Party) or had not moved any amendments there (the Trinamool Congress) moved amendments in the Rajya Sabha and their representatives delivered fiery speeches opposing the provisions of the Bill. When it became clear that at least three of the amendments (those relating to the selection and removal of Lokpal members, the CBI being brought under the administrative control of the Lokpal, and the deletion of the chapter on Lokayuktas in the States) were likely to be passed, the government engineered disturbances in the House, resorted to filibustering and prevented the amendments from being voted upon. And the House was prorogued with the Bill hanging in the air.The drama in the Rajya Sabha showed that the government was not even willing to go by the will of Parliament. This gives rise to fundamental questions about the functioning of Indian democracy.



The Bill adds that if a prima facie case exists against a public servant, the Lokpal may refer it to the CBI for investigation. Also, it may refer a case for preliminary inquiry to the CBI (other than Group A, B, C and D officers). The Bill also provides that the Lokpal shall exercise general superintendence over the CBI (similar to the CVC's supervision currently). These additional dilutions in the later Bill, according to critics, reduce the Lokpal to just a post office.



The committee recommended that the Lokpal conduct only the preliminary inquiry and that it be authorised to initiate it suo motu. In such cases, the inquiry would have to be done by a five-member Lokpal Bench that is not connected with the suo motu initiation. More important, the accused would not get an opportunity to be heard at this stage, though the Bill of August allowed that. The later Bill rejects both these recommendations and sticks to the August version, which provided that the Lokpal could initiate an inquiry only on the basis of a complaint by a citizen. The only concession the Bill makes is that the Lokpal shall have its own inquiry wing to conduct a preliminary inquiry on a complaint it has received and has decided can be inquired into.



Under Article 252 or 253

Some parties questioned that lokpal bill should be brought under article 253 & not under article 252.

Article 252: Article 252. Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State

(1) If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the House of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State.

(2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State



Article 253: Article 253. Legislation for giving effect to international agreements Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.



Relation between Union and States

The relation between Union and States is the very bedrock of the Indian Federal system. India is a federal State with a national government and a government of each constituent state. Although the structure of India is federal in a general way, yet there are certain aspects that are unique to federalism as practiced in India. The Indian government follows a strong central bias.

Some of the special features of India are as follows:

Agreement between the States: If two states agree that the Parliament can legally make laws with respect to the two states, then the Parliament can make laws relating to any law or set of laws related to the State Laws. This is an extension of the Parliamentary legislative as laid down by the Article 252 of the Indian Constitution.



Implementation of Treaties: The Parliament makes laws for the implementation of treaties, even if the subject falls under the legislative power of the State, for the bigger international interest of the country. This power has been given to the Union by the Article 253.



Suggested Amendments: Team Anna had suggested 34 amendments to rectify the government's Bill, and pointed out that four of these were critical to making the Lokpal a workable institution. These were that the selection and removal procedure should be made independent of the government; the CBI should be brought under the Lokpal's administrative control or, alternatively, the Lokpal should have its own investigative body; all government servants should be brought under the Lokpal's investigative ambit; and the procedure for investigation should be in line with the normal criminal investigation procedure. But the government was adamant in not accepting any of these either, and went on to bulldoze the passage of its Bill. It rejected all the amendments moved by the Opposition in the Lower House.



Notices for 187 Amendments in Rajya Sabha

Notice had been given for as many as 187 amendments to the Lokpal and Lokayukta Bill, 2011 including from the Trinamool Congress for deletion of the entire Part III of the Bill regarding establishment of the Lokayuktas. The Biju Janata Dal and the Shiromani Akali Dal too had given similar notices. By afternoon, the Rajya Sabha had received 173 amendment notices. The number swelled to 187 by evening as announced by the Minister of State for Personnel V. Narayanasamy. Normally notices are taken 24 hours in advance but on Thursday, notices were accepted till late evening, while the government took the stand in the House that there were too many amendments which “needed consideration.”



Among major amendments were the ones given by the Bharatiya Janata Party for deletion of words “not less than” 50 per cent of members of Lokpal belonging to Scheduled Castes, Scheduled tribes, Other Backward Classes, Minorities and Women in Clause 3. They also asked for deletion of the word ‘Minorities' in Clause 3 and inclusion of Leader of Opposition in Rajya Sabha on Selection Committee in Clause 4. They also wanted Lokpal to appoint his secretary and not select from a panel given by the government.



The Communist Party of India (Marxist) gave amendment for replacement of eminent jurist on the Selection Committee with “an eminent person to be nominated by the Chief Election Commissioner, Comptroller and Auditor General and Union Public Service Commission. They also wanted the Inquiry Wing under the Lokpal to be replaced by “Investigation Wing” with the Central government providing officers and staff under exclusive jurisdiction of the Lokpal as decided in consultation with the Lokpal. The Party gave another amendment for inclusion under the Lokpal of “any corporate body, its promoters, its officers including Director against whom there is a complaint of corruption in relation to grant of government licence, lease, contract, agreement or any other action to influence government policy through corrupt means.” They wanted Lokpal to take suo motu action in a compliant of corruption.



Other Angle

Passing of “Lokpal” Bill seems quite an impossible task,because every party to it has its interest.The UPA government summarily “checkmated” the social activists and drove them into existential crisis while simultaneously reducing the Lokpal bill to a maere a game tool. At the moment, the activists will be happier with the “no bill at all” than the current version of the bill tabled by the government. None of the political parties wants the Lokpal bill. Even if individual politicians want it, they can’t do a thing about it because their “High Command” does not want it. But the country’s future is at stake. The politicians are out to maintain the status-quo in order to protect their corrupt practices and ill-gotten wealth. But Team Anna has accepted this mission and is not going to relent until their goals are met. Team Anna rallied the masses and raised hopes of a utopian tomorrow - one with a clean and independent CBI under an incorruptible Lokpal. But after an entire year of wrangling with the government.



Meanwhile, the elections in UP are round the corner, and the Congress has been expanding its reach with some crafty electoral mathematics, a specialization offered at the Allahabad University. Ajit Singh is already in the bag. He was traded the lucrative civil aviation ministry in return for joining the Congress electoral alliance in UP. Likewise, the Railway Ministry is being “dangled” in front of Mulayam Singh Yadav of the SP. Doing well in the UP elections will surely serve as a shot in the arm for the Congress. First, it might cause a mental breakdown for Mayawati, especially after the election commission decided to cover her statues across the state. Secondly, it sets the stage for Rahul Gandhi’s coronation as the PM. Besides, it will also give the Congress greater leverage against Didi.



On the other side of this pitched battle is the opportunistic BJP, which recently threw open its gates for Mayawati discards in UP. In contrast, the same BJP passed a strong Lokayutkha bill in Uttarkhand. The BJP’s goal is simple - stall the bill, harp on the government’s incompetence, and cash in on the general discontent in the country, in hope of riding an anti-corruption wave to get back in power. The battle lines are drawn. On one side is the Congress party and its fickle, calculative allies. The leading trouble-maker among the allies is the TMC. The Congress needs her now and she knows that. Her primary long-term goal is to put the CPI(M) out of business in W. Bengal. But at present, everything she does is to extract the maximum from the Congress.



Conclusion

India’s politicians again stand discredited in the eyes of people, who are asking questions to which the politicians, both the ruling party and the opposition, do not have an answer. If we truly want to make India corruption free we need to look at the new generation. Yes the government can help — first by cleaning up their administration and then by punishing corrupt people so severely that punishment becomes a deterrent to corruption. The government can support and reward honesty — reward people who pay taxes instead of harassing them and go after the people who do not pay taxes and yet lead opulent lives. Rewarding honesty and penalising dishonesty will create an ecosystem that supports a life of integrity. Let the honest man be privileged and acknowledged so that people aspire to be honest.



We need to target schools and colleges; motivate the youngsters to take charge so that they can start changing the world around them. We have to stop paying the cop for traffic offences, and we have to have the will to fight each time a bribe is asked of us. The people of India need the media now — the media that catapulted the movement to fame needs to open an action line where every act of corruption can be reported and exposed. Because this battle can be won, this change can be made and we do not need regulation to do so.



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