A few truths about the Jan Lokpal

In all this squabble over whether the Jan Lokpal is a panacea to a corruption ridden nation or a looming apocalypse, I thought I'd do some actual research before having anything more to say.

I'd posted in support of the movement here, without saying too much about the bill itself.

Yesterday, I attended a public question and answer session with Justice Santosh Hegde organised by The Hindu. Justice Santosh Hegde, whose track record on fighting corruption speaks for itself, has served as a lawyer, the Advocate General for Karnataka, the Additional Solicitor General and a Supreme Court Judge. He was instrumental in preparing the Jan Lokpal draft. He came across as an incisive and knowledgeable stalwart in the practice of the law.

Today, I spent half my Sunday reading the bill in its entirety and also looked up some of the other acts that it often referred to. The bill can be found here.

Why the bill is required would be obvious to everyone but the completely oblivious. Anyway, just to present a taste of how our country is run, here is something you might want to chew on.

India has over 1456 Billion USD stashed away as black money in Swiss banks. This was according to a declaration made by the Swiss government. Here's the dubious top five list.

1. India—– $1,456 billion 2. Russia —-$ 470 billion 3. UK ——-$390 billion 4.Ukraine – –$100 billion 5. China —–$ 96 billion

The Indian total is far greater than the sum of the other four countries. But hold on. Figures as large as those don't make sense without some perspective. $1,456 billion translates to Rs 65,520 billion. The order of magnitude here is 13. 6.5 raised to the 13th power of 10. This happens to exceed the entire revenue budgetary requirement for the year 2010-11 by 5 times. And this is just the Swiss black money issue.

The four other countries have promptly transferred this wealth back to their shores. Our government is still consulting its lawyers.

I'll look at only those parts of the draft that have come under rather heavy criticism.

1. The Rogue Pal charge

Under the apprehension that the Lokpal could turn renegade, a few critics have bestowed upon it astronomical powers akin to those who run parallel governments.

The Jan Lokpal cannot mete out punishment, contrary to popular belief. It is merely an investigative body and can at the most submit its findings to a special court, whose judgement can be challenged in a High court or the Supreme court of the country. Hence, the Lokpal is answerable to these courts with regard to all its actions during the prosecution.

Article 29.7 states

"Appeal against the orders of Lokpal shall lie in High Court of appropriate jurisdiction, which shall decide the matter within two months of filing of the appeal."

Now let's turn our attention to Section 17.2

"Nothing in this Act shall be construed as authorising the Lokpal to investigate any action which is taken by or with the approval of the Presiding Officer of either House of Parliament."

which categorically strips the Lokpal of investigating any executive action whose approval is sought from the leaders of the parliament houses.

The Lokpal has been bestowed with police powers in only specific sections of the Criminal Procedure Code and the Prevention of Corruption Act. This power is granted to any wing of vigilance that functions in the country including the CBI and the CVC.

2. Its far reaching judicial powers

Article 10.2 highlights the judicial powers of the Lokpal.

"For the purpose of any such investigation (including the preliminary inquiry) the Lokpal shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 , in respect of the following matters, namely:-

(a) Summoning and enforcing the attendance of any person and examining him on oath;

(b) Requiring the discovery and production of any document;

(c) Receiving evidence on affidavits;

(d) Requisitioning any public record or copy thereof from any court or office ;

(e) Issuing commissions for the examination of witnesses or documents ;

(f) ordering payment of compensatory cost in respect of a false or vexatious claim or defence;

(g) ordering cost for causing delay;

(h) Such other matters as may be prescribed."

Simply put, the Lokpal has the right to examine any evidence or subject the accused to questioning in the event of an investigation. Clearly, the points above do not exceed those that are required for any investigative agency to function. Anyone who claims that the Lokpal has far reaching judicial powers is just as far from the truth.

3. The dubious and arbitrary selection committee

Well, the proposed selection panel consists of

a. The Chairpersons of both Houses of Parliament

b. Two senior most judges of Supreme Court

c. Two senior most Chief Justices of High Courts.

d. All Nobel Laureates of Indian Origin

e. Chairperson of National Human Rights Commission

f. Last two Magsaysay Award winners of Indian origin

g. Comptroller and Auditor General of India

h. Chief Election Commissioner

i. Bharat Ratna Award winners

j. After the first set of selection process, the outgoing members and Chairperson of Lokpal.

Where the senior-most judge of Supreme Court shall act as the Chairperson of the selection committee.

Here,

a. represents the political faction. b. and c. comprise of the higher judiciary. e., g. and h. represent the bureaucracy and civil society representation is present at the other posts. This keeps a healthy balance in place where people from all walks of life participate.

Why are some people against representation from civil society? Aren't 12 members of the Rajya Sabha nominated from the same civil society?

The only thing that escapes my logic here is the inclusion of Nobel Prize and Bharat Ratna awardees. These awards are not given particularly for social service. But I'm sure that these details will be ironed out in a detailed draft.

The selection isn't as "ad-hoc" as the critics thought.

Here is the Government's proposed selection committee:

1. Prime Minister

2. Speaker of the Rajya Sabha

3. Leader of the Opposition

4. One Judge

5. One nominee of the Prime Minister

This selection committee can easily undermine any anti corruption bill in its very inception.

4. Unelected people have no say in how this country is run.

Yes. They don't. But neither does the Lokpal. They are merely an investigative organisation. If they shouldn't exist, neither should the CBI, CVC, CAG, Election Commission or the President of India. (Remember Abdul Kalam for instance? He was from civil society)

5. The Prime Minister shouldn't fall within the Lokpal's ambit..

.. for a host of reasons ranging from regional instability to the sale of defence secrets to foreign powers, they say. The Indian Penal code, drafted in 1860 by Lord Macaulay, and continued by the Indian government ever since we became a Republic, holds any government official including the Prime minister answerable to the laws stated there in. Why should we now make an exception? The same argument holds for judges in the higher judiciary.

This aside, the Lokpal has made provision for the PM to be excluded from the law in section 18.6 and 18.9.

18.6

" If during the course of investigation or enquiry into a complaint, Lokpal feels that continuance of a public servant in that position could adversely affect the course of investigations or enquiry or that the said person is likely to impact evidence or witnesses, the Lokpal may issue appropriate orders including transfer of that public servant from that position or his suspension.

Provided that such orders shall not be passed against the Prime Minister."

This is obviously framed keeping in mind that dismissal of the Prime Minister cannot be made easily by the Lokpal.

18.9

"Where after investigation into a complaint, the Lokpal is satisfied that the complaint involving an allegation against the public servant, other than the Ministers, Members of Parliament and judges, is substantiated and that the public servant concerned should not continue to hold the post held by him, the Lokpal shall pass orders to that effect. In case of public servant being a Minister or a Member of Parliament, Lokpal shall make such recommendation to the President, who shall decide either to accept such recommendation or reject it within a month of its receipt.

Provided that the provisions of this section shall not apply to the Prime Minister."

The clauses above are built for preventing bureaucrats and government officials from tampering with evidence against them from their position of power. 18.9 exempts all ministers and judges from its ambit and submits that decision to the president. Strangely, the media doesn't highlight these points to us. I doubt if the media has read the original draft at all!

Prime ministers have died in office without issue of prior notice in the past. Governments have fallen in no confidence motions several times. Interim prime ministers and acting prime ministers have stepped in without there being any threat to the regional stability of our diverse country.

And why must our national secrets be divulged to the Lokpal in any case? They are an investigative agency, and not the Indian equivalent of the ISI. These are just issues that are built to divert people's attention and dilute their support.

The investigative bodies today and the Prevention of Corruption Act are framed such that they fall under the ruling government's thumb completely and are hence not adequate in today's degenerate times. We can't blame the leaders of yesterday for making these policies as they, in their wildest imagination, couldn't have envisioned the evils that haunt the Indian Government today. That is why this movement is required in the first place. 1.76 Lakh Crores has 12 significant zeros.

I've gathered from the interaction with Justice Santosh Hegde the moment when he lost complete trust in the legislature. To quote his exact words in an interview to Tehelka,

"We expect our leaders to do their jobs, but I for one lost trust when on 23 December 2008, the Parliament passed 17 Bills in 12 minutes, without any discussion whatsoever. It included amendments to an anti-corruption law. Three sections of the Prevention of Corruption Act were removed, and only civil society prevented the Bill from going to the Rajya Sabha. After this, how can they say it’s my prerogative, stay away?"

How's that for an eye opener? Do we expect these minds to engage corruption at any level?

In light of the times we live in, the need for a strong ombudsman can never be stated enough. I was pleased to read today that in the all party meeting, most parties seem to be in agreement with this. The majority has also voiced its support for the inclusion of the PM under the Lokpal. However, their words are only token promises, as is my happiness ephemeral on seeing them.

This is why the movement needs our support. This is why Kapil Sibal shows up every night trying to denigrate this bill to its very foundations, because it threatens the solid foundation of corruption that they've spent generations laying and earthquake proofing by passing 17 bills in 12 minutes. And all those skeptics and apocalypse prophets trying to join him in his allegations are misinformed armchair professors at the least and dangerous agents of the government at the most.

Everyday, the TV is blaring with the same mundane debates where politicians, both from the Government and the opposition, engage in mudslinging. The media is out there to compete with tele-serials for ratings rather than give the nation the information it needs.

We must do whatever we can to see this bill passed. We can't afford to lose having come so far.