The Lokpal by Mr. Arvind Kejriwal

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Why Prime Minister should be covered under Lokpal?

Government wants to keep Prime Minister out of the ambit of Lokpal’s jurisdiction. It means that if there is any allegation of corruption against the Prime Minister, the same cannot be investigated. In effect, it amounts to giving complete immunity to the Prime Minister from any kind of investigations and prosecution.

This violates constitutional provisions because the constitution does not grant any such immunity to the Prime Minister. Constitution grants such immunity only to the President. Constitutional forefathers granted such immunity to the President to avoid any destabilization at the top. By keeping Prime Minister out of the ambit of Lokpal Bill, the government is informally and effectively amending the constitution.

Government’s argument is that if Prime Minister were covered under Lokpal, it would create an instability at the top. “Imagine if the prime minister were being investigated. He would not be able to take any decisions as long as the investigations were on,” argued government ministers in the last joint committee meeting. They were reminded by Prashant Bhushan that the then Prime Minister was also investigated by CBI in Bofors case. That did not deter him from taking decisions or make him “dysfunctional”. Likewise, Mr Narasimha Rao was also under scanner for corruption charges.

Therefore, till now, CBI could investigate the misdeeds of the Prime Minister. Now, no one would be able to investigate him. That’s going many steps backwards rather than strengthening our anti-corruption systems.

Another argument was given to keep the Prime Minister out. There would be politically motivated complaints which would be frivolous but would keep the PM perpetually under scanner. That is incorrect. Because an unsubstantiated complaint would not be entertained by Lokpal. A seven member bench of Lokpal would first hear that complaint and decide whether there was adequate prima facie evidence against the PM. If there were none, the complaint would be dismissed.

The government had drafted a very weak Lokpal Bill in January this year. The Bill was so bad that it was universally criticized. Many civil society people got together and drafted an alternate Jan Lokpal Bill. The whole anti-corruption movement was against government’s weak Lokpal bill and to demand enactment of jan Lokpal Bill. Interestingly, prime Minister was covered in the government’s draft Lokpal bill also which was considered quite bad. The government, rather than strengthening anti-corruption systems, is further weakening them.

All this makes government’s intentions suspect. Why is it so important to bring Prime Minister under Lokpal’s scanner? For many reasons. At any time, Prime Minister holds many portfolios. Does it mean that all those ministries would also be out of Lokpal? If Prime Minister were out of Lokpal, is it possible that he becomes the conduit for collecting money on behalf of other ministers?

Being privy to the most critical information, a corrupt prime minister can become the biggest threat to internal and external security of India. It is extremely important that there were an independent, credible and effective system to investigate him and take timely action.

 

Should judiciary be brought under the purview of jan Lokpal Bill?

Before answering that question, let us understand what exactly is being proposed in Jan Lokpal Bill, what its criticism is and what is our response thereto.

What is the problem?

Today, if there is an allegation of corruption against any Supreme Court (SC) or High Court (HC) judge, an FIR cannot be registered and investigations cannot be started into those allegations without the permission of the Chief Justice of India (CJI). Experience shows that Chief Justices have hesitated in giving permissions, despite overwhelming evidence of corruption being presented against any judge.

Even those Chief Justices, who have been well known for their honesty, did not give permissions. For instance, Mr P Chidambaram sought permission to register an FIR against Justice Sen Gupta of Kolkatta High Court. Permission was sought from the then Chief Justice of India, Justice Venkatachaliah, who is very well known for his integrity. However, Justice Venkatachaliah did not give permission. Was the evidence against Justice Sen Gupta strong enough? The strength of the evidence can be gauged from the fact that Justice Sen Gupta was raided and arrested soon after he retired because after retirement, permission of CJI was not required.

Despite overwhelming evidence of corruption available in public domain against many High Court and Supreme Court judges, permission to register FIR was granted in just one case by the Chief Justice of India in the last twenty years.

Therefore, the present system appears to have protected the corrupt judges and encouraged corruption in higher judiciary.

Proposal:

An impression is being sought to be created that judiciary is being brought under the control of Jan Lokpal. This is completely incorrect.

What is being proposed is that the permission to register FIR against corruption of any judge should be granted by a seven member bench of Jan Lokpal (the bench may have majority of judicial members) rather than the Chief Justice of India. That is the only real difference in the system proposed in Jan Lokpal Bill and the existing system.

Post registration of an FIR, the police or CBI investigates and prosecutes (if a case is made out) under the existing system. Since we are proposing that the anti corruption branch of CBI would be merged into Jan Lokpal and would form the investigation and prosecution wing of Jan Lokpal, therefore, obviously the investigations and prosecution after registration of FIR is proposed to be done by the new investigation and prosecution wings of Lokpal.

Therefore, effectively, there is just one change being proposed from the existing system – that rather than CJI giving permission to register FIR, a seven member bench of Lokpal should grant such permission.

Criticism of this proposal and our response thereto:

It is being said that this would affect the independence of judiciary. We fail to understand how will it affect the independence of judiciary? The present system compromises the independence of judiciary by protecting the corrupt judges and by encouraging corruption. Jan Lokpal Bill seeks to create a system, which is independent of judiciary, to grant permission to register an FIR and initiate investigations against a judge. That would act as a strong deterrence against corruption in higher judiciary. Would that not strengthen the independence of judiciary?

Another objection to inclusion of judiciary in Lokpal Bill is that this would tremendously increase the workload of Lokpal. This is also incorrect. There are less than 1000 SC and HC judges in our country. Justice S P Bharucha had once commented that less than 20% of higher judiciary is corrupt. Obviously, complaints will not come against all of them at the same time. But even if all complaints came together, there will be less than 200 complaints. That is a very small number and would not increase the workload of Lokpal in any manner.

Some people have said that judicial matters are very technical. Therefore, only people from judiciary should deal with complaints against judges. If that logic were accepted, then the income tax people would also say that income tax is a very complex subject and only people with income tax backgrounds should deal with allegations of corruption against income tax officers. There would be similar demands from politicians, customs officers and other sections of bureaucracy. Giving and accepting bribe is a criminal offence. There is no technicality involved in that.

But the proceedings for impeachment of judges is already provided in the Constitution. We are not even talking of impeachment. All that we are saying is that the power to grant permission to register FIR against a judge should be given to a seven member bench of Lokpal rather than the CJI.

Won’t we need to amend the constitution to allow a seven member bench of Lokpal to give permission rather than the CJI under the existing system? No, we won’t need any amendment.

But why not bring judicial corruption within the ambit of Judicial Accountability Bill?

Firstly, Judicial Accountability Bill (JAB) does not talk of bribery by the judges. It only talks of “misbehavior”. National Judicial Commission sought to be created through JAB will not have the police and investigative powers and machinery to deal with criminal complaints of bribery, which Lokpal would have. Jan Lokpal talks of criminal misconduct. Therefore, the two bills complement each other.

Secondly, it is being alleged that Lokpal Bill will compromise judicial independence. If so, how will JAB not compromise judicial independence?  The National Judicial Commission (NJC) sought to be created through Judicial Accountability Bill is similar to the Lokpal (barring their names). How is NJC more constitutional than Lokpal? Just because NJC will have some judges? But then even Lokpal will have four judges. Therefore, isn’t the public being misled by saying that the independence of judiciary will be protected if judicial corruption were addressed through JAB rather than by Lokpal?

Thirdly, JAB drafted by the government is a very bad law. It has been criticized by everyone. Rather than reduce corruption, it would end up protecting the corrupt judges. The law ought to be changed drastically to make it effective.

Fourtly, even if judicial corruption were included in JAB, it is not clear when would an effective JAB become a reality? Should we wait endlessly till Jab became a reality? We have absolutely no problem in judicial corruption being included in JAB if JAB were made strong and effective and if JAB were also passed along with Lokpal Bill.

 

Should MPs be covered under Lokpal?

 

The country has been witness to several instances of horse trading of MPs in the past. We saw images of our honorable MPs receiving bundles of notes to vote in certain manner or to ask questions in Parliament. If our MPs could be purchased like this, then our democracy is in danger. The threat is far more serious than even terrorism because, these MPs could be purchased by foreign countries also. Our independence would be in danger if this were not checked.

However, according to the Supreme Court judgement in Jharkhand Mukti Morcha case, the conduct of an MP in Parliament cannot be questioned in any court of law. That could be investigated and acted upon by the Speaker only. According to that judgement, the person who gave bribe can be convicted and sent to jail but the MP who took that bribe cannot be prosecuted.

Despite evidence coming out in open in so many cases, in the last 62 years, no MP has even been prosecuted and sent to jail so far. Forget conviction, none of these cases were even investigated. Only enquiries were done on the basis of which, some MPs were expelled. But corruption is a crime. Their expulsion is not sufficient. They ought to have gone to jail. There should have been criminal investigation and subsequent conviction. However, that did not take place in any of these cases.

This shows that the present system encourages horse trading and protects corrupt MPs. Self-regulation by the House has not worked. This problem ought to be addressed immediately. An independent and credible agency ought to receive and investigate such complaints. Since Lokpal would be responsible for investigating similar crimes against other set of public servants, therefore, we are suggesting that Lokpal should be given this responsibility also.

If our Hon’ble Members of Parliament are afraid that frivolous complaint would be filed against them and they might be unnecessarily harassed, we can certainly discuss checks and balances to prevent such misuse.

Would constitution need to be amended? Article 105(2) of the constitution only grants immunity to MPs to speak and vote independently in Parliament. It does not grant them immunity to sell their vote and right to ask questions. Therefore, many experts believe that a law would be sufficient to address this issue and to overturn the JMM judgement. However, even if constitution needs to be amended, we feel that it should be done to address such a critical problem.

 

Should Lokpal deal with only higher level corruption?

Many eminent people have suggested that Lokpal should concentrate only on higher level corruption.

India has a classic anti-corruption system with completely fractured mandate. In the same case of corruption, the departmental vigilance wing “enquires” into the role of junior officials, CVC “enquires” into the role of senior officials, CBI “investigates” the “criminal” aspect of that case and in states, the Lokayuktas “enquire” into the role of a politician – all enquiries and investigations take place in the same case. It is the sure way of killing any case. Junior officers, senior officers, bureaucrats and politicians do not indulge in corruption separately.

Firstly, this kind of fractured mandate creates confusion. No agency gets access to all records. Secondly, enquiries and investigations into any case goes on and on for years. For instance, in street lighting case of Common Wealth case, first an enquiry was done by CVC, then CBI investigated into the same case and then it was again enquired into by Shunglu committee. Thirdly, if two agencies arrive at conflicting conclusions on the same case, it only weakens the case against corrupt people.

In almost every case, the criminal investigation is done by CBI and vigilance enquiries are done by departmental vigilance wing. Since departmental vigilance wing consists of friends and colleagues of the accused, it is quite easy to manage these enquiries. The departmental vigilance enquiry, therefore, acquits the accused officers. This finding is then used by the accused officer in the court and it kills CBI’s case also. The final beneficiaries of this confusing system are the corrupt people who never get punished.

By creating yet another agency called Lokpal to deal with only politicians or senior bureaucrats, we will further fracture the mandate. Rather than check corruption, this system would create further mess and end up helping the corrupt.

None of the top ten countries on integrity appearing on the list of Transparency International have such fractured mandates. They just have one anti-corruption agency to deal with corruption at all levels. Other agencies, if any, just provide support like research etc to the main anti-corruption agency.

Scores of eminent people have advocated for a “lean, thin and effective” Lokpal. The question is how “lean and thin” should it be to become “effective”?

Some people have suggested that it should deal with corruption of only politicians. This is exactly what UPA wants. This is the model suggested by UPA in their draft Bill. This model has been in existence in most of the states at Lokayukta levels and has completely failed. Almost no corruption starts at the level of a politician. It normally starts at the level of an officer, who writes something on the file, maybe under pressure. The role of a politician in a file becomes visible after many levels. That is the reason, that almost no case reaches Lokayukta. Delhi Lokyukta has jurisdiction only on politicians. Justice Shamim, former Lokayukta of Delhi, used to complain that though the government spends almost Rs 1.25 crores on his institution annually, he receives less than 5 actionable complaints every year. In Karnataka, the Lokayukta has jurisdiction over both politicians and bureaucrats. And it has worked very well. The conference of all Lokayuktas, held annually, has been demanding for many years that this fractured mandate given to them only on politicians was serving the interests of only corrupt people and should be immediately done away with. They have been demanding replication of Karnataka model everywhere in the country. Obviously, in the absence of political will, this has not been done so far.

Some other people, including government, says that Lokpal should investigate onlt those who are of the rank of Joint Secretary and above. If that be so, then roughly 2000 odd officers will come under its ambit. And how much staff should Lokpal have to investigate them? Hong Kong, which is treated as a good model of anti-corruption, has one anti-corruption staff (including the menial staff), for every 200 government employees. If we use that standard, Lokpal should have a total of 10 employees. Is that our vision of Lokpal? Rather than “thin” it would be an “emaciated” Lokpal.

 

What kind of model should Lokpal be?

Won’t bringing all officers and politicians make Lokpal unwieldy? Would it be able to handle so many cases? Won’t it die under its own weight?

It depends upon our vision of Lokpal or what kind of model do we have in mind?

There are two types of models possible.

Government’s vision:

Government is looking at Lokpal as an 11 member body, which will pass all orders either collectively or in benches like Supreme Court or High Court. There would be many types of orders to be passed in each case – granting permission to register cases, granting sanction for prosecution, imposing financial penalties for violation of citizen’s charters, imposing departmental penalties, freezing assets of accused, issuing arrest warrants, issuing warrants for search and seizure etc. In addition, the Lokpal members would also be required to supervise and administer. If this model were accepted, Lokpal would collapse within a few days.

Our suggestion:

In contrast, what we have in mind is a comprehensive anti-corruption system capable of enforcing the Prevention of Corruption Act.  Such a system does not exist in our country at present. Lokpal members will not directly deal with any case. They will have a machinery under them which will deal with the cases. In order to deal with high profile cases, they can have certain number of special investigative units directly under their control. But the rest of the machinery will receive and investigate smaller cases.

For instance, it would be wrong to say that the Chairman of Central Board of Direct Taxes (CBDT) should not be given the responsibility of handling income tax returns of 3 crore tax payers as he would get flooded with work and would not be able to deal with high profile tax evaders. But he does not deal with individual tax returns himself. There is a huge machinery that works under him. Likewise, it is incorrect to say that Director of CBI gets flooded with complaints of corruption and thus, is incapable of dealing with high profile cases. CBI has more than 1600 investigation officers who do the investigations. The Director of the CBI neither receives nor investigates complaints personally.

Likewise, Lokpal Chairperson or members will not directly receive complaints. The institution, at various levels will receive complaints and investigate them. Will Lokpal become unwieldy? No, our estimates show that its workforce may not exceed 15,000 people, which is a middle sized government department.

If Lokpal will deal with only higher level corruption, who will deal with lower level corruption? Some people have said that many administrative reforms need to be done to address corruption at various levels. We completely agree with that. We are only attempting to create a system where there is certainty and swiftness of punishment, if someone indulged in corruption, whether at higher level or lower level – a body, where a citizen complains against corruption and an honest investigation is done on that.

So, if we confine Lokpal to only high level corruption, where should a common man go, who has unearthed corruption in some government scheme through RTI?

And do we think that if Lokpal dealt with high level corruption, there would be a trickle down effect and lower level corruption would automatically reduce? Just like the economic reforms did not have trickle down effect, creating anti-corruption systems only against top people would also not have any trickle down effect. Experience shows that honest individuals sitting at top could not reduce corruption at lower levels in their departments.

So, according to the model that we are suggesting, Lokpal would have quasi judicial powers in some high profile cases or against judges and ministers, which the members may like to monitor personally, but largely, it will supervise a comprehensive anti-corruption system.

 

Should Lokpal have powers to impose departmental penalties?

Today, if any officer indulges in corruption, two parallel proceedings start against him. CBI initiates criminal proceedings against him under Prevention of Corruption Act. These proceedings, if successful will result in that officer going to jail. Simultaneously, the department initiates vigilance enquiries against that officer. These enquiries, if successful, will result in that officer losing his job.

Therefore, for the same offence, two enquiries/investigations start simultaneously by two separate bodies. Since the vigilance enquiries are being conducted by the same department i.e. by the friends and colleagues of the accused, most often, these enquiries end up acquitting the officer. When CBI files its chargesheet in the court, the accused officer presents the findings of departmental vigilance before the court, which weakens CBI case in the court.

Even if the departmental vigilance concludes that the officer is guilty, the punishment is to be given by the head of that department on the advice of CVC. CVC keeps on recommending harsh punishments. However, their advice is rarely accepted and in most cases, because the head of the Department, in many cases is in collusion, either does not impose any punishment or lets the accused off with a warning.

Why should we have two agencies enquiring/investigating into same offence?

Therefore, we are suggesting that only one set of investigations should be done by Lokpal. Post investigations, on one hand, the prosecution wing of Lokpal will file a case in the court, on the other hand simultaneously, a bench of Lokpal, after giving reasonable opportunity of being heard to the accused officers, impose departmental punishment on the accused officers. However, these orders of Lokpal could be challenged in High Court.

This system is better than the present system where the head of the department, who is in collusion with the accused is responsible for imposing these penalties.

 

Why should CBI be merged into Lokpal?

CBI is directly controlled by the government. Before starting any investigation, it has to seek permission from the government, sometimes from the same people who are either accused or could be influenced by the accused. Despite huge unaccounted cash being recovered from the house of a top NHAI officer, Kamal Nath denied permission to initiate enquiry against him.

After completion of investigations, if sufficient evidence is found, CBI has to again seek permission from the same people in the government to file a case in the court. Coal Ministry just sat on CBI’s repeated requests to prosecute the officer who was to become the CMD. Railways just sat on CBI’s request to prosecute one of its top employees involved in railway recruitment scam.

There are many other ways in which the government controls CBI. Like CBI’s lawyers are appointed by Law ministry and are under ministry’s control. Even if a CBI officer does a good investigation, the government can kill that case in the court through the lawyer. CBI’s officers are also appointed by the government and are under government’s control.

Therefore, CBI is completely in the clutches of the government. It has been used by every successive government to teach lessons to political opponents and to arm twist them into submission.

Supreme Court, on many occasions has said that CBI should be made completely independent of the government. For obvious reasons, successive governments have not done that.

This is exactly what Jan Lokpal Bill proposes to do now, that the anti-corruption wing of CBI should be made independent and be made the investigation arm of Lokpal.

However, in the Joint committee meeting, government suggested that the CBI should be allowed to continue to work under the control of the government and let a separate investigative wing be created for Lokpal.

On the face of it, there seems to be no problem. However the following questions arise:

1.       What if the same complaint is made to both CBI and Lokpal? Government says that Lokpal would get precedence. But suppose CBi is doing a dishonest investigation in any case or is being influenced by the government, then could Lokpal call for the file from CBI midway and take it up from there? Yes, says the government. Then why have CBI at all?

2.       With a choice between a compromised CBI and an independent Lokpal, won’t almost all people like to approach Lokpal? Then what would CBI do? It would be left to investigate only those cases which are forwarded by the government itself. This means that the government basically wants to continue misusing CBI for its nefarious political purposes. Should we allow that?

3.       CBI’s annual budget is around Rs 300 crores. Why should we spend the same amount to create another set up to do the same things?

What should we do with CVC? CVC received around 1700 actionable complaints last year and enquired into just 11 complaints. It merely forwarded rest of the complaints to respective departments to enquire and take action against themselves. With a total staff strength of just 240 people, CVC is a glorified post office. In the cases enquired into by departments, CVC gives its advice on quantum of punishment. However, that advice is rarely followed. CVC should either be wound  up or merged into Lokpal.

 

Jan Lokpal Bill – A “Frankenstein” monster?

Many people have called Jan Lokpal as a “Frankenstein”. It has been suggested at some places that strong Lokpal is a threat to democracy.  In some articles, the powers of search, summons, phone tapping, contempt powers have been questioned.

Do we want a weak Lokpal? The powers mentioned above are the powers enjoyed by any law enforcement and investigative agency, be it ED, CBI, Income Tax or any other agency. There is not even a single power which they do not enjoy, which we are suggesting to be given to Lokpal. How will Lokpal function without these powers? In lighter vein, Lokpal cannot be expected to stand with folded hands in front of people like Raja, Kalmadi and Yediyurappa and plead before them to disclose their wrong-doing or declare their illicit wealth.

The corrupt people want a weak Lokpal Bill. Quite inadvertently, we will end up serving their interests by supporting a weak Lokpal Bill. Therefore, we need a strong Lokpal albeit with adequate checks and balances to prevent misuse of these powers by the Lokpal.

If there is any power that we have written which should not be there, kindly let us know. We can discuss its removal. If we have failed in building adequate checks and balances, kindly help us building them in.

 

How to ensure that there is no corruption within Lokpal?

a. Firstly, by ensuring that the right person is selected for this role!

 

Selection process for the members and Chairperson of Jan Lokpal and Jan Lokayukta has been kept transparent, broad based and participatory.

Ø      The 10 members and the chairperson of Jan Lokpal will be selected by a Selection Committee that would comprise of the PM, Leader of the opposition in Lok Sabha, two youngest judges of Supreme Court (SC), two youngest Chief Justices of High Courts, Comptroller and Auditor General (CAG) and the Chief Election Commissioner (CEC). The Selection Committee will make the above appointment from a pool of shortlisted candidates that has been identified by a “Search Committee”.

Ø      The “Search Committee” is a 10-member committee formed as follows:  First, the Selection Committee selects five members from retired Chief Election Commissioners and retired CAGs. However those CECs and CAGs who have any substantive allegation of corruption against them or who have joined any political party after retirement or who are still in any government appointment shall not be eligible. These 5 members will then select another 5 members from the civil society to make the 10-member Search Committee.

Ø      The Search Committee will invite recommendations from various eminent people (like journalists, academics, etc). These names will be put up on a website and public feedback invited. The search committee will then, by consensus, choose 3 times the number of vacancies.  This list will be forwarded to the Selection Committee which will then make final selections through consensus.

Ø      All meetings of the Search Committee and Selection Committee shall be video recorded and will be made public.

Ø      Jan Lokpal and Jan Lokayukta will then select and appoint its own officers and staff.

 

b. Secondly, by ensuring that they work well and are regularly audited!

 

Ø      Every complaint to Jan Lokpal or Jan Lokayukta shall have to be compulsorily disposed. No complaint could be rejected without giving a hearing to the complainant. If any case is closed, all records related thereto shall be made public

Ø      The functioning of Jan Lokpal and Jan Lokayukta will be completely transparent. All records will be open to the public, barring those which will affect national security or security of the whistle blower. Those which will impede the process of investigation, may be withheld during investigations but these records will also have to be disclosed after conclusion of investigations.

Ø      Lokpal will publish every month on its website the status of cases received, disposed, closed, reasons for closure and the list of cases pending

Ø      CAG will conduct financial and performance audit of Lokpal annually.

Ø      Appropriate Parliamentary committee will appraise Lokpal annually.

Ø      Regular social audits at various levels of Lokpal

 

c. Thirdly, by ensuring that Jan Lokpal and Jan Lokayukt are not influenced!

 

The Chairperson and members will not be eligible for appointment to any position in the government or for contesting elections after they leave office.

d. Fourthly, by ensuring that if not working well, they can be removed!

(i)   Removal of corrupt staff in Lokpal or Lokayukta

Complaints of corruption against the staff could be made to an independent platform, which will be set up in each Commissionerate or at the level of each state and at national level. These complaints will be enquired into within a month. If the allegations are proved, the corrupt staff will be dismissed from the job in the next one month and a criminal case will be registered under various sections of Indian Penal Code and Prevention of Corruption Act.

A system of complaints authority (on the lines of Police Reforms), which would involve people from civil society, is being worked out to remove local vigilance officers, if they indulge in corruption. Hearings of complaints authority will be held in open. There could be one or more complaints authority in a state.

(ii) Removal of Lokpal or Lokayukta members or Chairperson

Complaints against members and chair person could be made to Supreme Court or respective High Court. A bench of respective Court, after hearing, may order the formation of a Special Investigation Team that will conduct an inquiry and submit its report within 3 months. On the basis of this enquiry report, the respective Court may order removal of the member or Chairperson.

 

Written in the words of Mr. Arvind Kejriwal.

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