We, the Jan of the Lokpal

April 26, 2011 at 5:14 pm 26 comments

Yes, I too was taken-in with the spirit of oneness amongst Indians in support of Anna Hazare for the Jan Lokpal Bill. Yet something stopped me from expressing my support for it. I was trying to find the answers and put my concerns in words but couldn’t; blame it on my lack of knowledge on the history of the subject.  

Then Govt. submitted draft of the bill & Anna broke his fast but the fight is far from over. Debate continues, newer controversies are unleashed everyday and still no media has really cared to give us a clear analytical perspective of how the bill works for the public and its short comings.  

Well, it was then I discussed an idea of a guest post with Vishal Gupta, an engineer by education, an IAS aspirant & a fellow blogger. Since he is studying Public Administration in detail it made sense to let him tell us the what, why & why(k)nots of the Jan Lokpal Bil

———————————————————————————————–

The fascinating unravelling of events since Anna’s fast-unto-death at Jantar Mantar has thrown up many questions. But the actual debate seems to be slightly misplaced. A section of people and media (particularly electronic) have blindly thrown their weight behind the movement; while others have dismissed it as potentially damaging to democratic system.

It has been very difficult to find some facts, based on which, people can swear their allegiance to either camp. In this lengthy piece, I will try to produce a few well known and some hidden facts about the Jan Lokpal Bill.

Why is it a political hot potato?

Because the Jan Lokpal is a radical change. If implemented, it will have enormous implications for entire Indian democratic system. It discredits existing anti-corruption system, indirectly blames political establishment for its ineffectiveness and challenges the ‘independence’ of higher judiciary among other thorny issues.

Isn’t Jan Lokpal good?

Yes and no. In the current form (Version 2.2), the Jan Lokpal Bill seems akin to the mythical sword which had ruthless potential to slain its enemy but also needed a capable warrior to hold it, or it would have fatal consequences for its world.

I don’t get it.

Let us have a starting point. Though the Jan Lokpal Bill does not outline the principles it is based upon, a quick reading suggests the following as its guiding lights:

1. Existing Prevention of Corruption Act, 1988 (PoCA) sets appropriate legal framework to define and understand corruption.

2. Implementation of PoCA has been unsatisfactory due to lack of independence of vigilance and investigating agencies.

3. Anew system must be created to correct these imbalances. It should be administratively, financially and functionally independent, as far as possible, of the other organs of the ‘existing’ state.

4. Judiciary must be subjected to more scrutiny and accountability than it currently is.

The JLB seems to have been written with good intentions. Unfortunately, good intentions do not always transpire into good consequences. Remember the constitutional provisions regarding reservation?

What would a Jan Lokpal be able to do?

Many things. In fact, too many things. Here is a few of them:

1. It is intended to be a watchdog over Prime Minister, Cabinet, MPs, Judges of HCs and SC and bureaucracy.

2. It will be able to act suo moto or hear any complaint having a vigilance angle from any person. The loosely defined term ‘vigilance angle’ includes administrative negligence, unexplained delays, inaction, discrimination, victimization of whistle-blowers, unfair investigations et cetera.

3. It will subsume whole of Central Vigilance Commission, departmental vigilance set-up and the part of CBI concerned with corruption cases.

4. It will have powers of a civil court, Police and High Court in certain matters. It can even authorise tapping of phones under the Indian Telegraph Act, allow search and seizure of property and impose penalties.

5. Section 15 of the bill will make report of the CAG enforceable by taking up the responsibility to investigate the lacunae pointed out by the CAG. If this were to exist earlier, the 2G spectrum scandal would have been dealt with much earlier!

6. Section 21 of the Jan Lokpal Bill makes Citizen’s Charters mandatory and enforceable. Thus, the bill effectively doubles up as a ‘Right to Public Services Bill’. It is also a Whistle-blowers’ Protection Bill.

7. Interestingly, the bill (Section 28B) links Lokpal with the Election Commission as well. Lokpal will be empowered to compare the assets declared by candidates while filing nomination with their Income Tax Returns. It can initiate prosecution if it finds any wrongdoing.

What are the problems with the Civil Society bill?

Plenty of them. Even an amateur like me can tell that it has not been written in the best way possible. To summarise, it tries to do too many things thereby violating the basic legislative principle of simplicity. I will try to list a few of the perceived problems:

1. It creates a tangled web of systems by linking institutions like the CAG, the Election Commission, the CVC, CBI and others to Lokpal.

2. For the first time, the bill seeks to bring higher judiciary under constant scrutiny of another institution. It is being perceived as a threat to judicial independence.

3. It describes the processes very rigorously but seems to set unrealistic time lines.

For e.g, selection of a new member of Lokpal must take place within one month of her resignation. Within that duration – a search committee has to be formed, recommendations are to be invited from anyone, public views are to be sought, short-listing is to be done and a decision is to be taken by the Selection Committee. And, it is only a summary of the process. As another example, in some cases, orders of Lokpal must be implemented within a week!

4. It includes former CAGs as members of Lokpal search committee. This provision violates Article 148 of the constitutions which bars the CAG to hold any other governmental office after their retirement.

5. Civil society members of the search committee are to be nominated by other members of the committee thereby making the procedure arbitrary and undemocratic.

6. Lokpal selection committee would include previous members of Lokpal. It would unnecessarily turn it into a Privy Council. Moreover, there are only two elected representatives as its members, making them a minority. If I could recommend an alternative, it would include PM, Leader of Opposition, CEC (representing constitutional institutions), Chief Justice of India (representing judiciary) and Cabinet Secretary (representing bureaucracy).

7.  Bill is likely to burden Supreme Court further by allowing anyone to file a petition for removal of a member of Lokpal. It also curtails powers of Supreme court indirectly by laying down the procedure of handling of such petitions.

8. Enforceability of Citizen Charter will have no meaning if it is not written with right intentions.

9. Inmost cases, the bill leaves no remedy for those dissatisfied with the Lokpal. Not even Supreme Court could be moved against its verdicts.

So, is it doom either way?

Government Bill was definitely a lot weaker than the Civil Society bill. But the Jan Lokpal Bill does not seem to be an answer either.

It vests a number of necessary and some unnecessary powers in the Lokpal but does not seem to contain sufficient number of checks and balances to ensure its accountability to ‘us, the people‘ who dedicated to ourselves the most elaborate constitution six decades ago. This is the fundamental worry of the detractors of this anti-corruption struggle.

The Jan Lokpal has the potential to be as effective as our much feted Election Commission. But it also has potential to undermine even existing systems of governance with its inefficiency. I will leave you with the last section of the Bill, which probably sums up the fears of the unknown:

35. This Act shall override the provisions of all other laws.


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26 Comments Add your own

  • 1. Cindrella  |  April 26, 2011 at 7:35 pm

    That was very informative. Though i used to be very much keen on supporting Anna Hazare’s by doing my best through the social networking sites, i always had these questions in my mind. I was never much technically aware of the details of the Bill and i feel very much enlightened reading this post.

    Thank you very much for sharing this…

    keep blogging :)

    Reply
    • 2. Vishal Gupta  |  April 27, 2011 at 3:07 pm

      Thanks Cindrella. Great to know that this post was of some use.

      Reply
  • 3. Kartikay  |  April 27, 2011 at 12:38 am

    I’m too lazy to go through the whole bill, but I was surprised to find no such analysis in any of the news outlets I pick up daily. That observation in itself is a scary thought – was there some ulterior motive behind all this noise?

    Overall, I think it’s a scary bill. You don’t put all your eggs in one basket!

    But thanks Vishal for analyzing this issue in detail! Awesome job you’ve done here. For all this effort, you will get one milkshake from Kevinters!

    Reply
    • 4. Vishal Gupta  |  April 27, 2011 at 2:48 pm

      That is why keep ridiculing the media. They rarely do what they are supposed to.

      And Kevinters. Anytime. Blogging seems to offer some perks these days!

      Reply
      • 5. delhizen  |  April 27, 2011 at 3:00 pm

        @ Kartikay & Vishal- Kevinters treat is on me… Date you decide, time- 7pm-8 pm :)

      • 6. Kartikay  |  April 27, 2011 at 3:18 pm

        Haha .. really? Sounds like a great idea – just that I’ll need to travel some 3000 km to reach. Oh, no biggie!

      • 7. delhizen  |  April 27, 2011 at 3:20 pm

        guys! read carefully… I said date you decide…

  • 8. Vishal Gupta  |  April 27, 2011 at 3:03 pm

    @delhizen – Kartikay Sahay, unfortunately, is not so privileged as to walk to that place anytime he likes. What say sahay?

    Reply
    • 9. delhizen  |  April 27, 2011 at 3:07 pm

      more the reason… we will have one extra shake (each) on his behalf ! let me know when

      PS: Kartikay, let us know your fav flavors, we don’t mind having those ;)

      Reply
    • 10. Kartikay  |  April 27, 2011 at 3:20 pm

      Oh I’m addicted to the Coffee shake!

      And if you do what you’re intending to do, I’ll go on my own and gulp TWO extra shakes on your behalf! HA!

      Reply
      • 11. Vishal Gupta  |  April 27, 2011 at 3:30 pm

        Stop crying and let us know whether you are planning a trip any time soon, so that a walk to Kevinters could be accommodated in your busy schedule. Else, you know, life goes on. ;)

  • 12. We, the Jan of the Lokpal » Unexplored Horizons  |  April 27, 2011 at 3:55 pm

    [...] have written a guest post for Pallavi’s blog. It analyses the Jan Lokpal Bill in detail and lists its strengths and [...]

    Reply
  • 13. zephyr  |  April 27, 2011 at 4:16 pm

    That was a wonderful analysis of the whole Bill in simple layman terms. Thanks for that. though I am a great supporter of Anna and the Bill, I did have niggling doubts about some points, all of which you have addressed.

    But don’t worry, the govt. is not such a fool as to accept all the provisions. What we will ultimately get is a slightly better one than what we have now, period.

    As for the media, don’t even talk about it. All one has to have is a screeching voice and some command over the language and one can become a reporter who also is a political analyst and observer rolled into one. Bah!

    Reply
    • 14. Vishal Gupta  |  April 28, 2011 at 2:19 pm

      I am glad that it helped in clearing some air!

      Media is our favourite whipping boy. :)

      Reply
  • 15. snowleopard  |  April 27, 2011 at 7:42 pm

    Interesting analysis. All that glitters is not gold it seems. We have many bills but lack implementation. I guess, if we can implement the ones we already have, the situation will become better.

    PS Reservation was ‘Good’ Intention?

    PPS @Kartikay and Vishal: Word of advise for the proposed Kevinter’s treat. Fix date, keep fingers crossed and make sure you have Plans B, C and D

    Reply
    • 16. Vishal Gupta  |  April 28, 2011 at 2:16 pm

      You are right about implementation. If we had well-functioning CBI and CVC, there would hardly be any need for a Lokpal.

      Reservation was supposed to be done away with after ten years since independence. So I did not interpret it as nefarious.

      And thanks for the hint in the PPS. ;)

      Reply
  • 17. Best Blogs and blog posts from Indian Blogging Community  |  April 30, 2011 at 12:18 pm

    [...] : Delhizen What : We, the Jan of the Lokpal Spicy : The Jan Lokpal Bill is still in discussion by many. Vishal, a blogger and a student of [...]

    Reply
  • 18. rahul  |  July 27, 2011 at 2:55 am

    Vishal,

    Sadly in your blogg you have mentioned there are quite a few problems with the bill, actually thats not correctly put. The CVC, CBI merger has been proposed which merges them and put s them under Lokpal. Whenever a bill is being proposed it is in crude state, but after Jan 2011 to now (July 2011) there have been many changes made and suggestions taken in to account. Let me tell you facebook concept, boeing planes, iphone and what not has been designed so far deemed as one of the best innovations have been very crude in their original design. So originally the bill can be that way, if educated people dont read it and understand it fully withoud having any political maturity, then we might tend to comment on them with our limited understanding. I highly recommend reading the lokpal bill draft again. Then ask elders, people who have worked in govt offices or who have dealt with the corrupt, explain the bill and ask them if there could be any loop hole. Also to the people who are reading this blog and making their opinion on Lokpal is not good bcoz this are just the bloggers views and is not necessarily the exact meaning of what Lokpal might intended to be.
    I would also urge you to watch 2-3 videos on IAC website where Arvind Kejriwal explains the bill in short.
    As far as judiciary goes Lokpal is not going to sit on top of it nor create a nuisance for it. Please let me know if this is not a resonable argument.

    Reply
    • 19. Kartikay  |  July 27, 2011 at 12:58 pm

      I agree! Vishal, Delhizen, it’s time for a re-write!

      Reply
      • 20. delhizen  |  July 27, 2011 at 5:49 pm

        Mr. Sahay, there shall be a appropriate update soon! Vishal is busy with some other work, I think.

        Rahul, you will get our take on the points raised by you… but comparing Bills with technology designs? Now thats a little immature because technology changes very fast and becomes obsolete at an even faster pace and that clearly is not the case with Bills. Never will be atleast in India

      • 21. Vishal Gupta  |  July 27, 2011 at 7:08 pm

        Sahay, why do you agree? And why is it time for a re-write?

      • 22. Kartikay  |  July 27, 2011 at 7:33 pm

        Considering that the noise has died down and it’ll be a good time for a constructive debate!

      • 23. Vishal Gupta  |  July 27, 2011 at 9:07 pm

        Oh. Expect it to become noisier once the Monsoon session begins. And if Anna goes to fast as planned, we are going to see some dramatic politics.

    • 24. Vishal Gupta  |  July 27, 2011 at 7:07 pm

      Rahul.

      Thanks for presenting your arguments.

      I understand that a legislation evolves over time. I have mentioned that the analysis pertains to version 2.2 (Under section “Isn’t Jan Lokpal Good?”).

      You are right in pointing out that these are the personal views of the author. I do not claim that I have analysed it absolutely threadbare. We have courts for that purpose. It was intended to provide a perspective to people who might be interested in BOTH sides of the arguments. And to have discussions like these which sadly, have been ignored in fanfare.

      As for Judiciary, I have only mentioned this : “It is being perceived as a threat to judicial independence.” I have not passed a judgement over this. Some newspapers (Indian Express, ToI) have been scathing on Jan Lokpal over inclusion of higher judiciary. I personally don’t believe higher judiciary is sacrosanct. They should come under the purview of some institution which can take prompt action. Jan Lokpal fits the bill.

      I have even read the latest draft (2.3) on your recommendation. There are some welcome changes. High courts have been granted writ jurisdiction over Lokpal orders. Special section on accountability of Lokpal has been provided. But most of the other gray areas that I pointed out continue to remain valid.

      These gray areas are not necessarily criticisms. I would definitely prefer Jan Lokpal over government draft. However, given the political scenario and debate, it is difficult to steer this bill through parliament as it requires multiple constitutional amendments (Article 312, Article 148, Article 124 and so on).

      I would be glad to re-evaluate or clarify my stand on any further specific points.

      Reply
  • 25. rahul  |  July 27, 2011 at 9:01 pm

    Vishal,
    Yes you are right. I forgot to mention last time that your original blog is written well though (apart from some arguments which I had).
    I agree there are grey areas that have to be addressed but I assume they will be covered in the bill. Otherwise we can send thoese as concerns and request some changes.

    Delhizen :-). I agree technology changes fast and it might be not a very clever analogy. I was just trying to bring my point.
    Thanks for the replies guys.
    Rahul

    Reply
    • 26. Vishal Gupta  |  July 27, 2011 at 9:06 pm

      Glad that we reached a middle ground!

      Reply

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