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Jan Lokpal Bill

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In India, the Jan Lokpal Bill (Citizen's ombudsman Bill) is a draft anti-corruption bill that would pave the way for a Jan Lokpal, an independent body like the Election Commission, which would have the power to prosecute politicians and bureaucrats without government permission.[1]

The bill has been drafted by Shanti Bhushan, former IPS Kiran Bedi, Justice N. Santosh Hegde, renowned advocate Prashant Bhushan, former chief election commissioner J. M. Lyngdoh in consultation with the leaders of the India Against Corruption movement and the civil society. The bill proposes institution of the office of Lokpal (Ombudsman) at center and Lok Ayukta at state level. Jan Lokpal Bill is designed to create an effective anti-corruption and grievance redressal systems at centre and to assure that effective deterrent is created against corruption and to provide effective protection to whistleblowers.[2][3]

The Lokpal Bill drafted by the government is pending to be passed in the Rajya Sabha since 42 years.[4] The first Lokpal Bill was passed in the 4th Lok Sabha in 1969 but could not get through in Rajya Sabha. Subsequently, Lokpal bills were introduced in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and in 2008. Yet none of these bills were ever passed.[5]

Background

The current lack of laws to curb corruption have made the need for Jan Lokpal Bill.

[edit] Need

India is one of the top three economies in the world but in case of corruption still it lacks to number 87 in Corruption Perceptions Index. Corruption is indirectly hindering the removal of poverty, illiteracy and other social causes.

[edit] The Lokpal

The Jan Lokpal Bill proposes the Lokpal to be instituted as a ten member body along with its officers and the employees. The bill provides for appointment of the Chairperson and members of the Lokpal within six months of enacting the bill. Predictable vacancies in Lokpal are to be filled in advance at least before three months of such vacancy. Unpredictable vacancies are to be filled within one month of such vacancy.

[edit] Appointment of the Chairperson and the Members of Lokpal

The draft bill provides that at least four members of the Lokpal must have legal background. In order to assure people of integrity are appointed as members of the Lokpal, the bill bars appointment of any person who has been charge-sheeted under Prevention of Corruption Act or under Indian Penal Code.

[edit] Selection Committee

The bill provides for the setting up a selection committee comprising of

  1. The Chairpersons of both Houses of Parliament

  2. Two senior most judges of Supreme Court

  3. Two senior most Chief Justices of High Courts.

  4. All Nobel Laureates of Indian Origin

  5. Chairperson of National Human Rights Commission

  6. Last two Magsaysay Award winners of Indian origin

  7. Comptroller and Auditor General of India

  8. Chief Election Commissioner

  9. Bharat Ratna Award winners

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

The senior most Justice of Supreme Court shall act as chairperson of the selection committee.

[edit] Selection Procedure

  • Recommendations shall be invited through open advertisements in prescribed format.

  • Each person recommending shall be expected to justify the selection of his candidate giving examples from the past achievements of the candidate.

  • The list of candidates along with their recommendations received in the format mentioned above shall be displayed on a website.

  • Each member of the selection committee, on the basis of the above material, shall recommend such number of names as there are vacancies.

  • A priority list shall be prepared with the candidate receiving recommendations from maximum number of members of selection committee at the top. The candidates recommended by same number of members shall be treated at par.

  • This priority list shall be displayed on the website.

  • Around three times the names as there are vacancies, shall be shortlisted from the top.

  • Public feedback shall be invited on the shortlisted names by putting these names on the website.

  • The selection committee may decide to use any means to collect more information about the background and past achievements of the shortlisted candidates.

  • Selection committee shall invite shortlisted candidates for discussions, video recordings of which shall be made public.

  • All the material obtained so far about the candidates shall be made available to each member of the selection committee in advance. The members shall make their own assessment of each candidate.

  • The selection committee shall meet and discuss the material so received about each candidate. The final selections for the Chairperson and members shall be made preferably through consensus. Provided that if three or more members, for reasons to be recorded in writing, object to the selection of any member, he shall not be selected.

  • All meetings of selection committee shall be video recorded and shall be made public

The Prime Minister shall recommend the names finalized by the selection committee to the President immediately, who shall order such appointments within a month of receipt of the same.

[edit] Powers and Functions of Lokpal

The bill proposes Lokpal to receive complains under Prevention of Corruption Act, complaints of misconduct, grievances and complaints from whistle-blowers. The Lokpal shall also provide protection to whistle blowers.

[edit] Timeline of events in support of the bill

December 2010

The bill is drafted and sent to government.

March 13, 2011

A group of Delhi residents dressed in white shirts and t-shirts took a four-hour drive around the city to drum up campaign against corruption and support the Jan Lokpal Bill.[6]

April 4, 2011

Anna Hazare, the anti corruption activist leader announces fast unto death till Jan Lokpal Bill enacted[7]

April 5, 2011

Around 6,000 Mumbai residents joined Anna Hazare for a one-day fast to support the demand for implementation of the Jan Lokpal Bill.[8]

April 12, 2011

Hazare has announced to start the Jail Bharo Andolan on 12th April, 2011 if the Jan Lokpal bill is not passed by the government.

[edit] Prominent Non Political Supporters

Spiritual

Activist

Players

  • Kapil Dev - former Indian cricketer and captain

Film Industry

Author

  • Chetan Bhagat - An author of Indian origin, popular columnist and an eminent speaker.

[edit] Political support

The protests are non political in nature. The political parties are being discouraged to take advantage of the issue.[9]

The response of prominent political parties and leaders is:

  • Bhartya Janta Party have extended support to the bill.[10] The principal opposition demanded that the Centre convene an all-party meeting to discuss the ‘Jan Lokpal Bill’ issue. [11]

  • Uma Bharti and Chautala tried to visit the Jantar Manter.

[edit] Public support

Anna Hazare states that they have received six crore (60 million) SMSes in its support. [12] He is further supported by a large number of Internet activists, similar to Egypt [13]

[edit] Government response

The government have stated that it has not received the proposed bill copy and it doesn't seem in a hurry to acknowledge the issue. After the ‘fast unto death’ was announced by Anna Hazare, he was invited for talks by the PM, but the response was bad as the PM said the government has no time for corruption till May 13. [14] To dissuade the veteran Gandhian Anna Hazare from going on an indefinite fast, the Prime Minister's Office have directed the ministries of personnel and law to examine how the views of civil society activists can be included in the lokpal bill.[15]

The National advisory Council is against the government on the Lokpal bill. On the 5th April 2011, the National Advisory Council rejected the Lokpal bill draft of the government.[16]

[edit] Status of bill

The government is again thinking of introducing a Lokpal Bill in parliament this year, and the National Advisory Council (NAC) chaired by Sonia Gandhi is considering it. But as it stands today, the bill is riddled with loopholes, defeating its very purpose.

[edit] Excerpts from the Draft Bill Tabled by UPA government

[edit] Establishment of Lokpal and the appointment of it's members

An excerpt from Chapter 2, Machinery for Inquiries

4. (1) The Chairperson and Members shall be appointed by the President by warrant under his hand and seal;

  (2) Every appointment under sub-section (1) shall be made after obtaining the recommendations of a
 Committee consisting of -

(a) the Vice-President of India Chairman;

(b) the Prime Minister -member;

(c) the Speaker of the house of the People -member;

(d) the Minister in-charge of the Ministry of Home Affairs in the Goverment of India -member;

(e) the Minister in-charge of the Ministry of Law and Justice in the Government of India -member;

(f) the Leader of the House other than the House in which the Prime Minister is a member of Parliament -member;

(g) the Leaderr of the Opposition in the House of the People -member;

(h) the Leader of the Opposition in the Council of States -member;

Provided that in case, there is no Leader of Opposition in the House of the People or the Council of States, the leader of the single largest group or party in opposition to the Government, as the case may be, in such House or Council shall be deemed to be a member of the Committee specified in clause (g) or clause (h), as the case may be;

Provided further that no sitting Judge of the Supreme Court or sitting Chief Justice of a High Court shall be appointed except after consultation with the Chief Justice of India.

  (3) No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Committee.

[edit] Jurisdiction of the Lokpal and the procedures to be followed

Excerpts from Chapter 3, Jurisdiction and Procedure in respect of inquiries

10. (1) Subject to other provisions of this Act, the Lokpal shall inquire into any matter involved in, or arising from, or connected with, any allegation of corruption made in a memorandum of complaints;

Provided that the Lokpal shall not inquire into any matter involved in, or arising from or connected with, any such allegation of corruption against the Prime Minister in so far as it relates to national security, maintenance of public order, national defense or foreign relations;

Provided that the Lokpal shall not inquire into any matter involved in, or arising from or connected with, any such allegation of corruption against any Member of either House of Parliament unless the recommendation of the Speaker of the House of People or the Chairman of Council of States, as the case may be, is recieved by it.

11. (1) The Lokpal shall not inquire into any matter concerning any person if the Chairperson or any Member has any bias in respect of such matter or person and if any dispute arises in this behalf, the President shall, on an application made by the party aggrieved, obtain, in such manner as may be prescribed, the opinion of the ChiefJustice of India and decide the dispute in confirmity with such opinion.

(2) The Lokpal shall not inquire into any memorandum of complaints if the memorandum of comlpaints is made after the expiry of five years from the date on which the offence mentioned in such memorandum of complaints is alleged to have committed.

12. (1) Any person other than a public servant may make a memorandum of complaints under this Act to the Lokpal.

Provided further that memorandum of complaints in case of Minister, Minister of State, or Deputy Minister of the Union and Member of either House of Parliament shall be made to the Speaker of the House of People or the Chairman of Council of States, as the case may be, and Lokpal shall consider only such memorandum of complaints as are referred to it by the Speaker of the House of People or the Chaiman of Council of States, as the case may be;

13. (1) If the Lokpal is satisfied, after considering a memorandum of complaints and after making such verifications as it seems appropriate that -

(a) the memorandum of complaints is not made within a period of five years as specified in sub-section (2) of section 11; or

(b) the memorandum of complaints is manifestly false and vexatious;

the Lokpal shall dismiss the memorandum of complaints after recording its reasons therfore and communicate the same to the complainant and the competent authority

14. (1) If, after consideration and verification under section 13 in respect of a memorandum of complaints, the Lokpal promises to conduct any inquiry, it-

(a) shall forthwith forward a copy of the memorandum of complaints to the competent authority;

(b) may make such orders as to the safe custody of documents relevant to inquiry as it deems fit; and

(c) shall at such time as it considers appropriate, forward a copy of the memorandum of complaints to the public functionary concerned and afford him an opportunity to represent his case.

(2) Every inquiry shall be conducted by the Chairperson and the Members sitting jointly and place in which such inquiry is conducted shall be deemed to be an open court to which the public generally may have access so far as the same can conveniently contain them;

Provided that in exceptional cicumstances and for reasons to be recorded in writing, such inquiry may be conducted in camera.

(3) The Lokpal shall hold every such inquiry as expeditiously as possible and in any case complete the inquiry within a period of six months from the date of reciept of memorandum of complaints;

Provided that the Lokpal may, for reasons to be recorded in writing, complete the inquiry within a further period of six months.

(4)Save as aforesaid, the procedure for conducting any such inquiry shall be such as the Lokpal considers appropriate in the circumstances of the case.

17. (1) After the conclusion of inquiry, the Lokpal shall determine whether all or any of the offences alleged in the memorandum of complaints have or has been proved to its satisfaction and by report in writing shall communicate its findings to the complainant, the public functionary and the competent authority.

(2) The Speaker, in the case of the Prime Minister or a Member of the House of the People, and the Chairman of the Council of the States, in the case of a Member of that Council shall, as soon as may be, after the reciept of the report under sub-section (1), cause the same to be laid before the House of the People or the Council of States, as the case may be while it is in session, and if the House of the People or the Council of States, as the case may be, is not in session, within a period of one week from the reassembly of the said House or the Council, as the case may be.

(3) The competent authority shall examine the report forwarded to it under sub-section (1) and communicate to the Lokpal, within a period of ninety days from the date of the reciept of the report, the action taken or proposed to be taken on the basis of the report.

(4) The Lokpal shall present annually to the President a consolidated report on the administration of this Act snd the President shall, as soon as may be after and in any case not later than ninety days from the reciept of such report, cause the same, together with an explanatory memorandum, to be laid before each house of Parliament.

[edit] Criticism of U.P.A's Lokpal bill

1. Lokpal will not have any power to either initiate action suo motu in any case or even receive complaints of corruption from general public. The general public will make complaints to the speaker of Lok Sabha or chairperson of Rajya Sabha. Only those complaints forwarded by Speaker of Lok Sabha/ Chairperson of Rajya Sabha to Lokpal would be investigated by Lokpal. This not only severely restricts the functioning of Lokpal, it also provides a tool in the hands of the ruling party to have only those cases referred to Lokpal which pertain to political opponents (since speaker is always from the ruling party). It will also provide a tool in the hands of the ruling party to protect its own politicians.

2. Lokpal has been proposed to be an advisory body. Lokpal, after enquiry in any case, will forward its report to the competent authority. The competent authority will have final powers to decide whether to take action on Lokpal’s report or not. In the case of cabinet ministers, the competent authority is Prime Minister. In the case of PM and MPs the competent authority is Lok Sabha or Rajya Sabha, as the case may be. In the coalition era when the government of the day depends upon the support of its political partners, it will be impossible for the PM to act against any of his cabinet ministers on the basis of Lokpal’s report.

3. The bill is legally unsound. Lokpal has not been given police powers. Therefore Lokpal cannot register an FIR. Therefore all the enquiries conducted by Lokpal will tantamount to “preliminary enquiries”. Even if the report of Lokpal is accepted, who will file the chargesheet in the court? Who will initiate prosecution? Who will appoint the prosecution lawyer? The entire bill is silent on that.

4. The bill does not say what will be the role of CBI after this bill. Can CBI and Lokpal investigate the same case or CBI will lose its powers to investigate politicians? If the latter is true, then this bill is meant to completely insulate politicians from any investigations whatsoever which are possible today through CBI.

5. There is a strong punishment for “frivolous” complaints. If any complaint is found to be false and frivolous, Lokpal will have the power to send the complainant to jail through summary trial but if the complaint were found to be true, the Lokpal will not have the power to send the corrupt politicians to jail! So the bill appears to be meant to browbeat, threaten and discourage those fighting against corruption.

6. Lokpal will have jurisdiction only on MPs, ministers and PM. It will not have jurisdiction over officers. The officers and politicians do not indulge in corruption separately. In any case of corruption, there is always an involvement of both of them. So according to government’s proposal, every case would need to be investigated by both CVC and Lokpal. So now, in each case, CVC will look into the role of bureaucrats while Lokpal will look into the role of politicians. Obviously the case records will be with one agency and the way government functions it will not share its records with the other agency. It is also possible that in the same case the two agencies arrive at completely opposite conclusions. Therefore it appears to be a sure way of killing any case.

7. Lokpal will consist of three members, all of them being retired judges. There is no reason why the choice should be restricted to judiciary. By creating so many post retirement posts for judges, the government will make the retiring judges vulnerable to government influences just before retirement as is already happening in the case of retiring bureaucrats. The retiring judges, in the hope of getting post retirement employment would do the bidding of the government in their last few years.

8. The selection committee consists of Vice President, PM, Leaders of both houses, Leaders of opposition in both houses, Law Minister and Home minister. Barring Vice President, all of them are politicians whose corruption Lokpal is supposed to investigate. So there is a direct conflict of interest. Also selection committee is heavily loaded in favor of the ruling party. Effectively ruling party will make the final selections. And obviously ruling party will never appoint strong and effective Lokpal.

9. Lokpal will not have powers to investigate any case against PM, which deals with foreign affairs, security and defence. This means that corruption in defence deals will be out of any scrutiny whatsoever. It will become impossible to investigate into any Bofors in future.

 

 

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