Jan Lokpal Bill will undermine democracy, warn former bureaucrats

By Special Correspondent, TwoCircles.net,

Chennai: Anna Hazare’s Jan Lokpal Bill (JLB) has come in for some sharp criticism by former bureaucrats and social activists. They were speaking in Chennai on Tuesday, Nov 8, 2011 at a discussion jointly organised by The Southern India Education Trust (SIET) and Forum for the Promotion of Moderate Thought among Muslims and attended by Chennai’s intellectual elite.

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Coming down heavily on the JLB for targeting only the government servants, Mr. M.R. Sivaraman, former Union Revenue Secretary, said; “The purpose of setting up high profiled agencies in the country to investigate corruption only against the government machinery would be grotesque. Corruption has two sides; the giver and the taker. The guilt of the former has been left out completely.” He warned that Lokpal should not have powers to tap phones as envisaged by the Anna team.

Ram Puniyani, convener, All India Secular Forum; N.L. Rajah, advocate, Madras High Court; R. Sivaraman, former Union Revenue Secretary; A. Faizur Rahman, secretary-general, Forum for the Promotion of Moderate Thought among Muslims; and Moosa Raza, chairman, SIET, at a discussion on the Lok Pal Bill in Chennai on Tuesday. [Photo Courtesy: thehindu.com]

On the issue of CBI being merged with the Lokpal Mr. Sivaraman partially agreed with the Hazare’s bill saying, “The CBI wing investigating Grade-A officers and above should be merged with the Lokpal. The remaining portion of the anti corruption unit of the CBI should be merged with the CVC who should investigate corruption at the lower levels.” Mr. Sivaraman’s reasoning was that amongst the hundreds of officers proceeded against by the CBI one finds innumerable names of officers of the IAS, IRS and other services with the exception of IPS. This gives impression that all police officers are above board and only the others are corrupt. “I have personally dealt with cases of officers who had been done grave injustice by the CBI” he added. Therefore Mr. Sivaraman was of the view that the entire investigation wings of the Lokpal and the Lokayuktas should all be Grade-A officers recruited de novo through All India competitive examinations.

Mr. Moosa Raza, Chairman S.I.E.T, said that “corruption hits at the progress, prosperity and governance of the country. Any law can only control and reduce corruption but can never entirely eliminate it. Even for this an effective law should fulfill three requirements namely practicality, implementability and Constitutionality. Applying this test neither the government Bill nor the JLB satisfies the three requirements. The JLB in particular is full of self-contradictions, bad drafting and uncoordinated clauses.”

As an example Mr. Raza pointed out the contradiction between the amendment No. 2 sought by the Hazare group and another provision of the same bill. As per Amendment No. 2 says one of the members of the Lokpal “shall be selected out of the last five batches of Indian Police Service in the same manner as other members are selected. Before joining, he will resign from the service. He will be responsible for running the investigation wing of Lokpal.”

Mr. Moosa Raza pointed out that any IPS officer selected from the last five batches will not be older than 29 years and this contradicts Section 4 (4) (c) of the JLB (version 2.3) which stipulates that “any person who is less than 45 years in age” is not eligible to become a member of the Lokpal. “And if in case”, Mr. Raza added, “Amendment No. 2 is to have an overriding effect on Section 4 (4)(c) then the entire investigative wing, under whom even the higher judiciary comes, would be headed by an IPS officer who will be in his twenties! The absurdity is obvious.”

Mr. Moosa Raza also noted that the way in which the various provisions of the JLB have been made, it would be almost impossible for the Search Committee to prepare a list of 20 or 30 prospective members with impeccable and unimpeachable character. And even if the committee succeeds in finding such people, the Selection Committee is unlikely to find a consensus on 10 members among them. In any case, it is doubtful whether these 10 persons of high integrity would be willing to subject themselves to all kinds of mudslinging that may take place through investigative journalism.

Highlighting another impracticality in the JLB, Mr. Raza said, “It will be next to impossible to find 150 to 160 High Court and Supreme Court judges to take charge of the various positions envisaged to investigate complaints against 18 million bureaucrats from Railway clerks to Secretaries to the Government of India. Not to mention MLAa, MPs and such other persons. This will require a behemoth of an organisation of investigators, again of impeccable character and integrity. Nonetheless, as the provisions of the JLB eat into the Constitutional rights of the citizens and the judiciary, it is likely to be struck down by the Supreme Court. Therefore, all these issues require to be addressed by the parliament in an analytical manner, examining all implications and incorporating solutions thereto before it passes the Lokpal Bill.”

Dr. Ram Puniyani, convener, All India Secular Forum said that the Anna Hazare movement came up as a spectacle, brought up by combination of various factors. According to Dr. Puniyani “the attempts for anti-corruption movement are an offshoot of the efforts of the NCPRI, which has been relentlessly working for more transparency and answerability in the government. From this the offshoot Youth Against Corruption which later became India Against Corruption was started mainly around Arvind Kejriwal, one of the main members of Team Anna. To begin with the government in the face of Baba Ramdev and later on Anna Hazare committed practically every mistake to appease these two. It was a mistake on the part of government to have a joint drafting committee with Team Anna as the representatives of civil society. There are multiple civil society groups and to think that the team Anna is ‘The’ civil society representative is wrong.”

Mr. Puniyani counseled that while the struggle against corruption is very crucial for a better society, we have to realize that corruption is just the symptom of the disease, which relates to the system, where concentration of power and inequality at all levels dominates the scene. The Anna movement was taken advantage of by some other forces, which tried to propagate that “Anna is India “and “Anna is above parliament.” This smacks of the authoritarianism and will be counterproductive for democratic norms and the parliamentary system. We cannot force the pace of the Bills; they cannot be made on Ram Lila maidans. If we bypass the parliament we are in for the trouble, we may land up in an authoritarian system with few around the top leader dictating the terms.

Mr. A. Faizur Rahman, Secretary-General, Forum for the Promotion of Moderate Thought among the Muslims, questioned the selection process proposed by the JLB according to which the Chairperson and members of the Lokpal are to be selected by a Selection Committee “from out of a short list prepared by the Search Committee” consisting of 10 members, five of whom will be selected by the Selection Committee and who will in turn co-opt the other five from the “civil society” through consensus. But as “civil society” itself is not defined, it leaves the door open for members of communal organisations to infiltrate into the Search Committee and infuse a sectarian or religious bias into the selection process. Therefore, Mr. Rahman opined that “the idea of a Search Committee is dangerous and must be dropped.”

He also pointed out that Sec 12 of the JLB seeks to circumscribe the powers granted to High Courts under Art. 226 of our Constitution by stating that a HC cannot “ordinarily” stay the orders of the Lokpal and if it does, it will have to decide the case within two months, “else the stay would be deemed to have been vacated after two months and no further stay in that case could be granted.” Quoting H.M.Seervai Mr. Rahman said that Sec.12 is ultra vires and hence, unacceptable.

Describing Hazare’s Lokpal as “a behemothic” institution Mr. Faizur Rahman wanted to know the wisdom behind the JLB’s demand for an annual budget of 0.25% of government of India’s “gross annual revenues” which works out to nearly Rs. 2000 crores! Expressing shock at this huge budget Mr. Rahman said that an explanation from the drafters of the JLB is in order as to why such a extraordinarily large amount of money is required for an institution which according to “Team Anna” is not going to be flooded with thousands of complaints.

Mr. N.L.Rajah, an eminent High Court lawyer, said that the original reason for the Lok Pal Bill was to counter the present system in which certain government servants such as those above the rank of an undersecretary in the central Government cannot be prosecuted without sanction. A parallel machinery was sought to be created which would investigate without sanction this class of Government servants and functionaries. “However,” Mr. Rajah claimed, “with passage of time we seem to merrily adding to the basket quite mindlessly. In the process we forget that we are paving the way to make the remedy totally non functional. This must be avoided we should go back to the original purpose of enacting the LokPal Bill.”

Mr. Rajah also pointed out that often legislations are passed by the Union Government and the implementation is left to the State Governments with hardly any financial provision made for the same. This results in a situation of the adjudicative machinery being poorly financed leading to total failure of the system. The Supreme Court has therefore in the Salem Courts Bar Association case held that it is mandatory when a legislation is passed that a note on the financial impact of the legislation is attached to the same. This is called judicial impact assessment. Activists must demand the inclusion of this in the LokPal Bill to be passed by parliament. Differing from the general clamor against the NGOs, Mr. Rajah asserted that NGOs need not be brought under the ambit of the Lokpal Bill as nothing prevents the government from prosecuting them under the conventional judicial system.

Earlier, the meeting began with welcome address by Prof. Zackriah Badsha, President of the Forum for the Promotion of Moderate Thought among Muslims, and was followed by open interaction with the audience most of whom felt that the meeting was timely and very enlightening. They wanted the SIET and the Moderate Thought Forum to organise similar “eye-opening” seminars on Lokpal in colleges to save the youth from falling prey to propaganda in favour of the unconstitutional provisions of the Jan Lokpal Bill.

The meeting ended with the singing of the national anthem.