Posts tagged ‘judiciary’
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.
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.