In India, the Jan Lokpal Bill
(Citizen's
ombudsman Bill) is a draft anti-corruption
bill that would pave the way for a
Jan Lokpal, an independent body like the
Election Commission, which would have the power to prosecute
politicians and bureaucrats without government permission.[1]
The bill has been drafted by
Shanti
Bhushan, former IPS
Kiran Bedi,
Justice
N. Santosh Hegde, renowned advocate
Prashant
Bhushan, former chief election commissioner
J. M. Lyngdoh in consultation with the leaders of the
India Against
Corruption movement and the civil society. The bill proposes
institution of the office of
Lokpal (Ombudsman)
at center and
Lok Ayukta at state level. Jan Lokpal Bill is designed to
create an effective anti-corruption and grievance redressal
systems at centre and to assure that effective deterrent is
created against corruption and to provide effective protection
to whistleblowers.[2][3]
The Lokpal Bill drafted by the
government is pending to be passed in the Rajya Sabha since 42
years.[4]
The first
Lokpal Bill was passed in the 4th
Lok Sabha
in 1969 but could not get through in
Rajya Sabha.
Subsequently, Lokpal bills were introduced in 1971, 1977, 1985,
1989, 1996, 1998, 2001, 2005 and in 2008. Yet none of these
bills were ever passed.[5]
Background
The current lack of laws to curb
corruption have made the need for Jan Lokpal Bill.
India is one of the top three
economies in the world but in case of
corruption
still it lacks to number 87 in
Corruption Perceptions Index. Corruption is indirectly hindering
the removal of poverty, illiteracy and other social causes.
[edit]
The Lokpal
The Jan
Lokpal Bill proposes the
Lokpal to be
instituted as a ten member body along with its officers and the
employees. The bill provides for appointment of the Chairperson and
members of the Lokpal within six months of enacting the bill.
Predictable vacancies in Lokpal are to be filled in advance at least
before three months of such vacancy. Unpredictable vacancies are to
be filled within one month of such vacancy.
[edit]
Appointment of the Chairperson and the Members of Lokpal
The draft bill provides that at least
four members of the Lokpal must have legal background. In order to
assure people of integrity are appointed as members of the Lokpal,
the bill bars appointment of any person who has been charge-sheeted
under
Prevention of Corruption Act or under
Indian
Penal Code.
[edit]
Selection
Committee
The bill provides for the setting up a
selection committee comprising of
-
The Chairpersons of both Houses of
Parliament
-
Two senior most judges of
Supreme Court
-
Two senior most Chief Justices of
High Courts.
-
All
Nobel Laureates of Indian Origin
-
Chairperson of
National Human Rights Commission
-
Last two
Magsaysay Award winners of Indian origin
-
Comptroller and Auditor General of India
-
Chief Election Commissioner
-
Bharat Ratna
Award winners
-
After the first set of selection
process, the outgoing members and Chairperson of Lokpal.
The senior most Justice of Supreme
Court shall act as chairperson of the selection committee.
[edit]
Selection
Procedure
-
Recommendations shall be invited
through open advertisements in prescribed format.
-
Each person recommending shall be
expected to justify the selection of his candidate giving
examples from the past achievements of the candidate.
-
The list of candidates along with
their recommendations received in the format mentioned above
shall be displayed on a website.
-
Each member of the selection
committee, on the basis of the above material, shall recommend
such number of names as there are vacancies.
-
A priority list shall be prepared
with the candidate receiving recommendations from maximum number
of members of selection committee at the top. The candidates
recommended by same number of members shall be treated at par.
-
This priority list shall be
displayed on the website.
-
Around three times the names as
there are vacancies, shall be shortlisted from the top.
-
Public feedback shall be invited
on the shortlisted names by putting these names on the website.
-
The selection committee may decide
to use any means to collect more information about the
background and past achievements of the shortlisted candidates.
-
Selection committee shall invite
shortlisted candidates for discussions, video recordings of
which shall be made public.
-
All the material obtained so far
about the candidates shall be made available to each member of
the selection committee in advance. The members shall make their
own assessment of each candidate.
-
The selection committee shall meet
and discuss the material so received about each candidate. The
final selections for the Chairperson and members shall be made
preferably through consensus. Provided that if three or more
members, for reasons to be recorded in writing, object to the
selection of any member, he shall not be selected.
-
All meetings of selection
committee shall be video recorded and shall be made public
The Prime Minister shall recommend the
names finalized by the selection committee to the President
immediately, who shall order such appointments within a month of
receipt of the same.
[edit]
Powers
and Functions of Lokpal
The bill proposes Lokpal to receive
complains under Prevention of Corruption Act, complaints of
misconduct, grievances and complaints from whistle-blowers. The
Lokpal shall also provide protection to
whistle blowers.
[edit]
Timeline of events in support of the bill
-
December 2010
-
The bill is drafted and sent to
government.
-
March 13, 2011
-
A group of Delhi residents dressed
in white shirts and t-shirts took a four-hour drive around the
city to drum up campaign against corruption and support the Jan
Lokpal Bill.[6]
-
April 4, 2011
-
Anna
Hazare, the anti corruption activist leader announces fast
unto death till Jan Lokpal Bill enacted[7]
-
April 5, 2011
-
Around 6,000 Mumbai residents
joined Anna Hazare for a one-day fast to support the demand for
implementation of the Jan Lokpal Bill.[8]
-
April 12, 2011
-
Hazare has announced to start the
Jail
Bharo Andolan on 12th April, 2011 if the Jan Lokpal bill is
not passed by the government.
[edit]
Prominent Non Political Supporters
Spiritual
Activist
Players
Film Industry
Author
[edit]
Political support
The protests are non political in
nature. The political parties are being discouraged to take
advantage of the issue.[9]
The response of prominent political
parties and leaders is:
[edit]
Public support
Anna Hazare states that they have
received six crore (60 million) SMSes in its support.
[12] He is further supported by a large number of Internet
activists, similar to Egypt
[13]
[edit]
Government
response
The government have stated that it has
not received the proposed bill copy and it doesn't seem in a hurry
to acknowledge the issue. After the ‘fast unto death’ was announced
by Anna Hazare, he was invited for talks by the PM, but the response
was bad as the PM said the government has no time for corruption
till May 13.
[14] To dissuade the veteran Gandhian Anna Hazare from
going on an indefinite fast, the Prime Minister's Office have
directed the ministries of personnel and law to examine how the
views of civil society activists can be included in the lokpal bill.[15]
The
National advisory Council is against the government on the
Lokpal bill. On the 5th April 2011, the National Advisory Council
rejected the Lokpal bill draft of the government.[16]
[edit]
Status of bill
The government is again thinking of
introducing a Lokpal Bill in parliament this year, and the
National Advisory Council (NAC) chaired by
Sonia Gandhi
is considering it. But as it stands today, the bill is riddled with
loopholes, defeating its very purpose.
[edit]
Excerpts from the Draft Bill Tabled by UPA government
[edit]
Establishment of Lokpal and the appointment of it's members
An excerpt from Chapter 2, Machinery
for Inquiries
4. (1) The Chairperson and Members
shall be appointed by the President by warrant under his hand and
seal;
(2) Every appointment under sub-section (1) shall be made after obtaining the recommendations of a
Committee consisting of -
(a) the Vice-President of India
Chairman;
(b) the Prime Minister -member;
(c) the Speaker of the house of the
People -member;
(d) the Minister in-charge of the
Ministry of Home Affairs in the Goverment of India -member;
(e) the Minister in-charge of the
Ministry of Law and Justice in the Government of India -member;
(f) the Leader of the House other than
the House in which the Prime Minister is a member of Parliament
-member;
(g) the Leaderr of the Opposition in
the House of the People -member;
(h) the Leader of the Opposition in
the Council of States -member;
Provided that in case, there is no
Leader of Opposition in the House of the People or the Council of
States, the leader of the single largest group or party in
opposition to the Government, as the case may be, in such House or
Council shall be deemed to be a member of the Committee specified in
clause (g) or clause (h), as the case may be;
Provided further that no sitting Judge
of the Supreme Court or sitting Chief Justice of a High Court shall
be appointed except after consultation with the Chief Justice of
India.
(3) No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Committee.
[edit]
Jurisdiction of the Lokpal and the procedures to be followed
Excerpts from Chapter 3, Jurisdiction
and Procedure in respect of inquiries
10. (1) Subject to other provisions of
this Act, the Lokpal shall inquire into any matter involved in, or
arising from, or connected with, any allegation of corruption made
in a memorandum of complaints;
Provided that the Lokpal shall not
inquire into any matter involved in, or arising from or connected
with, any such allegation of corruption against the Prime Minister
in so far as it relates to national security, maintenance of public
order, national defense or foreign relations;
Provided that the Lokpal shall not
inquire into any matter involved in, or arising from or connected
with, any such allegation of corruption against any Member of either
House of Parliament unless the recommendation of the Speaker of the
House of People or the Chairman of Council of States, as the case
may be, is recieved by it.
11. (1) The Lokpal shall not inquire
into any matter concerning any person if the Chairperson or any
Member has any bias in respect of such matter or person and if any
dispute arises in this behalf, the President shall, on an
application made by the party aggrieved, obtain, in such manner as
may be prescribed, the opinion of the ChiefJustice of India and
decide the dispute in confirmity with such opinion.
(2) The Lokpal shall not inquire into
any memorandum of complaints if the memorandum of comlpaints is made
after the expiry of five years from the date on which the offence
mentioned in such memorandum of complaints is alleged to have
committed.
12. (1) Any person other than a public
servant may make a memorandum of complaints under this Act to the
Lokpal.
Provided further that memorandum of
complaints in case of Minister, Minister of State, or Deputy
Minister of the Union and Member of either House of Parliament shall
be made to the Speaker of the House of People or the Chairman of
Council of States, as the case may be, and Lokpal shall consider
only such memorandum of complaints as are referred to it by the
Speaker of the House of People or the Chaiman of Council of States,
as the case may be;
13. (1) If the Lokpal is satisfied,
after considering a memorandum of complaints and after making such
verifications as it seems appropriate that -
(a) the memorandum of complaints is
not made within a period of five years as specified in sub-section
(2) of section 11; or
(b) the memorandum of complaints is
manifestly false and vexatious;
the Lokpal shall dismiss the
memorandum of complaints after recording its reasons therfore and
communicate the same to the complainant and the competent authority
14. (1) If, after consideration and
verification under section 13 in respect of a memorandum of
complaints, the Lokpal promises to conduct any inquiry, it-
(a) shall forthwith forward a copy of
the memorandum of complaints to the competent authority;
(b) may make such orders as to the
safe custody of documents relevant to inquiry as it deems fit; and
(c) shall at such time as it considers
appropriate, forward a copy of the memorandum of complaints to the
public functionary concerned and afford him an opportunity to
represent his case.
(2) Every inquiry shall be conducted
by the Chairperson and the Members sitting jointly and place in
which such inquiry is conducted shall be deemed to be an open court
to which the public generally may have access so far as the same can
conveniently contain them;
Provided that in exceptional
cicumstances and for reasons to be recorded in writing, such inquiry
may be conducted in camera.
(3) The Lokpal shall hold every such
inquiry as expeditiously as possible and in any case complete the
inquiry within a period of six months from the date of reciept of
memorandum of complaints;
Provided that the Lokpal may, for
reasons to be recorded in writing, complete the inquiry within a
further period of six months.
(4)Save as aforesaid, the procedure
for conducting any such inquiry shall be such as the Lokpal
considers appropriate in the circumstances of the case.
17. (1) After the conclusion of
inquiry, the Lokpal shall determine whether all or any of the
offences alleged in the memorandum of complaints have or has been
proved to its satisfaction and by report in writing shall
communicate its findings to the complainant, the public functionary
and the competent authority.
(2) The Speaker, in the case of the
Prime Minister or a Member of the House of the People, and the
Chairman of the Council of the States, in the case of a Member of
that Council shall, as soon as may be, after the reciept of the
report under sub-section (1), cause the same to be laid before the
House of the People or the Council of States, as the case may be
while it is in session, and if the House of the People or the
Council of States, as the case may be, is not in session, within a
period of one week from the reassembly of the said House or the
Council, as the case may be.
(3) The competent authority shall
examine the report forwarded to it under sub-section (1) and
communicate to the Lokpal, within a period of ninety days from the
date of the reciept of the report, the action taken or proposed to
be taken on the basis of the report.
(4) The Lokpal shall present annually
to the President a consolidated report on the administration of this
Act snd the President shall, as soon as may be after and in any case
not later than ninety days from the reciept of such report, cause
the same, together with an explanatory memorandum, to be laid before
each house of Parliament.
[edit]
Criticism of U.P.A's Lokpal bill
1. Lokpal will not have any power to
either initiate action suo motu in any case or even receive
complaints of corruption from general public. The general public
will make complaints to the speaker of Lok Sabha or chairperson of
Rajya Sabha. Only those complaints forwarded by Speaker of Lok Sabha/
Chairperson of Rajya Sabha to Lokpal would be investigated by Lokpal.
This not only severely restricts the functioning of Lokpal, it also
provides a tool in the hands of the ruling party to have only those
cases referred to Lokpal which pertain to political opponents (since
speaker is always from the ruling party). It will also provide a
tool in the hands of the ruling party to protect its own
politicians.
2. Lokpal has been proposed to be an
advisory body. Lokpal, after enquiry in any case, will forward its
report to the competent authority. The competent authority will have
final powers to decide whether to take action on Lokpal’s report or
not. In the case of cabinet ministers, the competent authority is
Prime Minister. In the case of PM and MPs the competent authority is
Lok Sabha or Rajya Sabha, as the case may be. In the coalition era
when the government of the day depends upon the support of its
political partners, it will be impossible for the PM to act against
any of his cabinet ministers on the basis of Lokpal’s report.
3. The bill is legally unsound. Lokpal
has not been given police powers. Therefore Lokpal cannot register
an FIR. Therefore all the enquiries conducted by Lokpal will
tantamount to “preliminary enquiries”. Even if the report of Lokpal
is accepted, who will file the chargesheet in the court? Who will
initiate prosecution? Who will appoint the prosecution lawyer? The
entire bill is silent on that.
4. The bill does not say what will be
the role of CBI after this bill. Can CBI and Lokpal investigate the
same case or CBI will lose its powers to investigate politicians? If
the latter is true, then this bill is meant to completely insulate
politicians from any investigations whatsoever which are possible
today through CBI.
5. There is a strong punishment for
“frivolous” complaints. If any complaint is found to be false and
frivolous, Lokpal will have the power to send the complainant to
jail through summary trial but if the complaint were found to be
true, the Lokpal will not have the power to send the corrupt
politicians to jail! So the bill appears to be meant to browbeat,
threaten and discourage those fighting against corruption.
6. Lokpal will have jurisdiction only
on MPs, ministers and PM. It will not have jurisdiction over
officers. The officers and politicians do not indulge in corruption
separately. In any case of corruption, there is always an
involvement of both of them. So according to government’s proposal,
every case would need to be investigated by both CVC and Lokpal. So
now, in each case, CVC will look into the role of bureaucrats while
Lokpal will look into the role of politicians. Obviously the case
records will be with one agency and the way government functions it
will not share its records with the other agency. It is also
possible that in the same case the two agencies arrive at completely
opposite conclusions. Therefore it appears to be a sure way of
killing any case.
7. Lokpal will consist of three
members, all of them being retired judges. There is no reason why
the choice should be restricted to judiciary. By creating so many
post retirement posts for judges, the government will make the
retiring judges vulnerable to government influences just before
retirement as is already happening in the case of retiring
bureaucrats. The retiring judges, in the hope of getting post
retirement employment would do the bidding of the government in
their last few years.
8. The selection committee consists of
Vice President, PM, Leaders of both houses, Leaders of opposition in
both houses, Law Minister and Home minister. Barring Vice President,
all of them are politicians whose corruption Lokpal is supposed to
investigate. So there is a direct conflict of interest. Also
selection committee is heavily loaded in favor of the ruling party.
Effectively ruling party will make the final selections. And
obviously ruling party will never appoint strong and effective
Lokpal.
9. Lokpal will not have powers to
investigate any case against PM, which deals with foreign affairs,
security and defence. This means that corruption in defence deals
will be out of any scrutiny whatsoever. It will become impossible to
investigate into any Bofors in future. |
