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seema (advocate)     22 August 2011

Some things that we should consider...

Over the past few months, there has been serious coverage of the Lokpal Movement: an apparent uprising against Corruption or a second freedom movement as some media outlets have titled it. As generally happens in our country, people picked up on the movement's publicity and threw their lot in it. Very soon we had a 'civil' society versus 'corrupt' government standoff.The focus of this movement has been the demand for a Lokpal. Both the Government and the Hazare-team have their own versions of legislative bills that would create a Lokpal. Without reading any of the versions, the people came out on the streets, said they would fast onto death with Hazare, who apparently is the second Mahatma Gandhi. However, of all these people hardly anyone has read both the versions and understood the implications of the same. They are on the streets fighting for a cause that has been dumbed down for them: Corruption will end when the Jan Lokpal comes into existence. However, one has to stop and consider. Can any body - statutory or otherwise - conclusively deal with corruption? Will it not always be a part of human behavior to try and make money on the side or jump the queue and get your work done faster? How will a Lokpal deal with human behavior. Well it may be argued that sanctions and their proper implementation is deterrent enough, but that argument is in itself flawed. For the sanctions to be imposed, there has to be the use of power. Power that will be yielded by a human being. A human being who is just as likely swayed by money or gratifications as any other. So regardless of whose version of Lokpal becomes a reality, can it be believed that the Lokpal and people working in this new body will be above being human. That there is no chance that they'd ever take a bribe? Have a drink with an industrialist in a hotel? Meet a lobbyist for lunch? Do a favor for an old school or college friend? Or make a phone call to a person in another department seeking a favor for himself? Assuming that all of the above doesn't happen and the Lokpal and the people who work for the same are extremely honest, lets take a look at the two (for now) versions of the Bill. There are certain key differences between the two Bills. Parliamentary Privilege Firstly, the Jan Lokpal Bill under s 2(e) includes acts of MP's inside Parliament, whereas the Lokpal Bill doesn't. The conduct of MP's inside the house is protected by Article 105 of the Constitution of India. Similarly the conducts of MLA's is protected by Article 194. The Supreme Court has already interpreted this privilege in the cases of MSM Sharma v Krishan Sinha affirmed in Special Reference 1 of 1964. The Court on both instances agreed that the privileges conferred by Articles 105 and 194 were independent of the right to freedom of speech and expression provided for in Article 19(1)(a). The framers clearly intended to create a specific privilege for a class of people, and to that end, put Article 105 and 194 in the Constitution. Now the Hazare-team wishes to take this privilege and grant the Lokpal authority to consider conduct inside the House. The Supreme Court in Tej Kiran Jain v Neelam Sanjiva Reddy clearly laid down that the protection of Article 105 and 194 extended to everything said in the House and it was understood that if the conduct was malafide or improper the Speaker of the House will handle the situation. A larger issue herein is the separation of powers? If a court or a tribunal or a statutory body like the Lokpal could conduct investigations or have the power to do the same with respect to conduct inside the House, then are we not transgressing the sacred line and reducing the legislature in status? If the power is passed on to a court, we are giving the judiciary too much power. If the power is given to a statutory body, one has to pause and think, can the creature of a Parliamentary Act be given so much power? Lets take a hypothethical. Tomorow the Jan Lokpal Bill becomes law. A MP from a certain state and party however, disagrees with the powers given and moves for an Amendment of a provision. Certain sections of the media allege that he is backed by strong industrial interests. The opposition picks up on this too. What then is stopping the Lokpal from begining an investigation based on a spirited speech in the House by the MP on the need for curtailment of powers of the Lokpal. I'd say nothing. In fact it is reasonable to assume that a turf war will ensue between the Lokpal and the said MP and MP's voting for the curtailment of the Lokpal's powers. Justice Rajendra Babu and Justice SP Bharucha speaking in PV Narasimha Rao v CBI said and I quote, "it [is] not difficult to envisage [that] a person who did not vote in a particular manner would be made to suffer the allegations of bribery by the powers that be." Therefore, we need to seriously think; can a creature of a Parliamentary Act be made so strong, that it dents the power of the Parliament itself? Some or all? The Lokpal Bill includes in it's ambit MP's, Ministers, the PM after he leaves office, members of the judiciary and Group 'A' government officials. The Jan Lokpal Bill on the other hand includes MP's, Ministers, the PM while he is in office, members of the judiciary and all government officials - essentially from PM to patwari everyone would be under the jurisdiction of the Lokpal. However, lets take a closer look. Including the PM firstly is against the respect that is generally accorded to the position and not the person. It is widely known that the PM is merely a MP, who is chosen by his peers to become the Prime Minister. There is also a perfectly good mechanism in place, where if the PM no longer enjoys the confidence of the House, a no-confidence motion may be moved. So it has been in our country and most others. The President in the United States of America is elected by the people; in the sense that they elect the Electoral College who then elects the President. However, once sworn, there are no control or inspection powers conferred upon any organ of state. The President may be impeached and then indicted, however, proceedings against the same during term would only burden the President.In Marbury v Madison, President Jefferson did not appear in Court, even through an attorney. Later in Aaron Burr’s trial for treason, Jefferson replied to the Court’s questions in the written form instead of appearing before the Supreme Court. In 1867, the SCOTUS in the matter of Mississippi v Johnson refused to hear an argument for an injunction against presidential enforcement of a statute. The clearest refusal by the SCOTUS however, came in the matter of Nixon v Fitzgerald. Chief Justice Warren Burger noted that the singular importance of the President’s duties requires freedom from private lawsuits for decisions taken within the outer perimeter of the office. It is not difficult to equate the President of the United States and the Prime Minister of India. Both are in a way elected indirectly. Both serve special functions and have special duties. And it seems quite logical that both should enjoy a certain privilege while in office. It must also be noted that both can be removed from office if the need arises. Therefore, one has to stop and think, why the insistence on the PM’s inclusion under the Jan Lokpal Bill? In our country where the media are more than ready to run with unverified reports, wouldn’t such inclusion lead to a possibility of false charges – a distraction from the duties of his/her high office to say the least. In fact one wonders if the same logic applies to Ministers? Also there is the question of the higher judiciary. Now this is clearly a no-brainer. There is absolutely no way that Judges of the Supreme Court can be brought under the ambit of a statutory body. Notwithstanding the question of separation of powers – can the legislature dent the independence of judiciary so protected by the Constitution – but the larger question of practicality. Any matter that a judge hears has two parties. One invariably wins while the other loses. If the judges were open to investigation, then we would very soon see a long queue of disgruntled parties alleging corruption by the judge. Anyone who loses to a big corporation; a rich person; or someone who they consider to be more powerful than themselves will naturally jump to the conclusion that something was wrong. A person who went all the way to the Supreme Court, wouldn’t think twice before sending in a complaint to the Lokpal. One again needs to pause and think, whether the higher judiciary or for that matter any judge should be included in any such legislation. Supreme Court judges are mighty and influential people and can probably waive aside such charges. What about a District Magistrate who has a child going to school who is being asked if it’s true that his/her father took money to decide a land eviction case? Again nothing need be proved. Only a complaint filed against the Magistrate before the Lokayukta and the mud would been slung. Where it lands becomes irrelevant when the local daily runs the headline – “DM accused of corruption, refuses to comment”. Coming to the question of officials other than those in Group ‘A’. The Lokpal Bill includes the 65,000 or so Group ‘A’ officials while the Jan Lokpal Bill is going for all government officials – close to 1,40,00,000. If everyone was to be included then the staffing requirements of the Lokpal shoot up. While 65,000 or so officials plus the others included in the Lokpal’s jurisdiction can be handled by say a staff of 3,000-5,0000 people; to tackle complaints against 1,40,00,000 we’ll need atleast 25,000-35,000 people. The question again is, where do we find these people and what guarantees their honesty. Also the control that a Lokpal official can enjoy over a Indian Railways TC is significantly more than the same official can enjoy over the Finance Secretary of India. Therefore, on balance it seems appropriate to keep only Group ‘A’ officials in the ambit of the Lokpal. Lastly, the issue of inclusion of NGO’s. To me it makes perfect sense that NGO’s who receive funds from the Government or the public should be included, as it is not unknown for any Government to favor certain NGO’s over others and there is a potential for corruption in this area. However, the Hazare-team – all of whom run NGO’s of their own – is firmly against including NGO’s. It seems they want all the accountability from the Government, without the Civil Society being held accountable too. Composition The Lokpal Bill envisages a Lokpal with a Chairperson and upto 8 members; at least half of which must have a judicial background. The Jan Lokpal Bill however, envisages an 11-member panel including the Chairperson of which only 4 must have a judicial background. One has to as ask why the Hazare-team does not wish to have more judicial members. One would think that their expertise on legal matters would only help the Lokpal. The more fundamental question though pertains to the selection process. The Jan Lokpal Bill has an elaborate process of selection wherein a search committee comprised of 10 members – 5 of whom would have retired as CJI, CEC or CAG – will first shortlist potential candidates and then a selection committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha, two SC Judges, two HC Chief Justices, the CEC, the CAG and all previous Lokpal Chairpersons. The Lokpal Bill on the other hand has a much simpler process. A committee consisting of the Prime Minister, Leaders of Opposition in both the Houses, a SC Judge, a HC Chief Justice, an eminent jurist and an eminent person in public life. The only question that arises is why not follow the same procedure that is followed for the selection of the CEC or the CAG, CVC or the Chairperson of NHRC. Removal The process for removal of Lokpal members is also a matter of debate. The Lokpal Bill permits the President of India to make a reference to the Supreme Court for an inquiry, followed by removal of the member is found to be biased or corrupt. The reference can be made by the President of his/her own volition; on a petition signed by 100 MP’s; or on a petition by a citizen if it so satisfies the President that it should be referred. The Jan Lokpal Bill however, states that the process will start with a complaint to the Supreme Court and if the Court finds any misbehavior, it may recommend removal of said member to the President. The latter procedure is clearly against the principles of separation of powers, parliamentary democracy, the authority of the President and convention as it stand. It has always been so that the President, if so wishes, can refer a matter to the Supreme Court and seek an opinion. It would be quite appalling if the Supreme Court were to give the President a recommendation for removal – a recommendation that would essentially bind the President considering it will be based on guilt of a person ascertained by the Court. Now while there is no doubt that such a person should be removed, there is the question of taking the President’s power away. The recommendation in this case would essentially work as an order from the Court. Something, which I believe the Supreme Court, can’t and shouldn’t do. Also even with regard to the impeachment of Supreme Court judges, the law is that a 100 MP’s can move a motion in the House. Why should the Lokpal be any different? Lastly, the Hazare-team touts the Lokpal as the solution to the citizen’s problems. Then why is it afraid of a citizen making a petition to the President wherein if the latter is satisfied the matter would be referred to the Supreme Court. It is much easier for a common-man to make a petition to the President of India rather than approach the Supreme Court and bear the costs of a lawyer – a lawyer good enough to prove the allegations against the Lokpal, a body which could easily engage the services of the Attorney General of India or the Solicitor General of India of the day. Even outside counsel of repute if required. Super-body? The Lokpal Bill provides for an investigation and prosecution wing of the Lokpal whereas the Jan Lokpal Bill gives the Lokpal the investigation and prosecution wing of the CBI. It does seem a lot of authority for one body. The Jan Lokpal Lokpal will have authority over MP’s conduct inside the House, government officials from PM to patwari, the entire judiciary and to top that a prosecution and investigation wing of it’s own plus a tedious removal process. Are we so naïve to actually think that there is no possible misconduct that can take place by a ‘person’ as powerful as this?

By

Naman joshi

3rd yr. Law Student

NLU DELHI

Sender

Seema Joshi



Learning

 2 Replies

Adv. Vaishali Karloopia (lawyer)     26 August 2011

Mam instead of posting it here you may post it in article, then it looks cool.

neverkilledyourdream (no)     28 August 2011

Originally posted by :shally karloopia
" Mam instead of posting it here you may post it in article, then it looks cool. "


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