All about Jan Lokpal Bill
At central Government level, there is Central Vigilance Commission, Departmental
vigilance and CBI. CVC and Departmental vigilance deal with vigilance
(disciplinary proceedings) aspect of a corruption case and CBI deals with
criminal aspect of that case.
Central Vigilance Commission: CVC is the apex body for all vigilance cases in
Government of India.
* However, it does not have adequate resources commensurate with the large
number of complaints that it receives. CVC is a very small set up with a staff
strength less than 200. It is supposed to check corruption in more than 1500
central government departments and ministries, some of them being as big as
Central Excise, Railways, Income Tax etc. Therefore, it has to depend on the
vigilance wings of respective departments and forwards most of the complaints
for inquiry and report to them. While it monitors the progress of these
complaints, there is delay and the complainants are often disturbed by this. It
directly enquires into a few complaints on its own, especially when it suspects
motivated delays or where senior officials could be implicated. But given the
constraints of manpower, such number is really small.
* CVC is merely an advisory body. Central Government Departments seek CVC's
advice on various corruption cases. However, they are free to accept or reject
CVC's advice. Even in those cases, which are directly enquired into by the CVC,
it can only advise government. CVC mentions these cases of non-acceptance in its
monthly reports and the Annual Report to Parliament. But these are not much in
focus in Parliamentary debates or by the media.
* Experience shows that CVC's advice to initiate prosecution is rarely
accepted
and whenever CVC advised major penalty, it was reduced to minor penalty.
Therefore, CVC can hardly be treated as an effective deterrent against
corruption.
* CVC cannot direct CBI to initiate enquiries against any officer of the
level
of Joint Secretary and above on its own. The CBI has to seek the permission of
that department, which obviously would not be granted if the senior officers of
that department are involved and they could delay the case or see to it that
permission would not be granted.
* CVC does not have powers to register criminal case. It deals only with
vigilance or disciplinary matters.
* It does not have powers over politicians. If there is an involvement of a
politician in any case, CVC could at best bring it to the notice of the
Government. There are several cases of serious corruption in which officials and
political executive are involved together.
* It does not have any direct powers over departmental vigilance wings.
Often
it is seen that CVC forwards a complaint to a department and then keeps sending
reminders to them to enquire and send report. Many a times, the departments just
do not comply. CVC does not have any really effective powers over them to seek
compliance of its orders.
* CVC does not have administrative control over officials in vigilance wings
of
various central government departments to which it forwards corruption
complaints. Though the government does consult CVC before appointing the Chief
Vigilance Officers of various departments, however, the final decision lies with
the government. Also, the officials below CVO are appointed/transferred by that
department only. Only in exceptional cases, if the CVO chooses to bring it to
the notice of CVC, CVC could bring pressure on the Department to revoke orders
but again such recommendations are not binding.
* Appointments to CVC are directly under the control of ruling political
party,
though the leader of the Opposition is a member of the Committee to select CVC
and VCs. But the Committee only considers names put up before it and that is
decided by the Government. The appointments are opaque.
* CVC Act gives supervisory powers to CVC over CBI. However, these
supervisory
powers have remained ineffective. CVC does not have the power to call for any
file from CBI or to direct them to do any case in a particular manner. Besides,
CBI is under administrative control of DOPT rather than CVC.
* Therefore, though CVC is relatively independent in its functioning, it
neither has resources nor powers to enquire and take action on complaints of
corruption in a manner that meets the expectations of people or act as an
effective deterrence against corruption.
Departmental Vigilance Wings: Each Department has a vigilance wing, which is
manned by officials from the same department (barring a few which have an
outsider as Chief Vigilance Officer. However, all the officers under him belong
to the same department).
* Since the officers in the vigilance wing of a department are from the same
department and they can be posted to any position in that department anytime, it
is practically impossible for them to be independent and objective while
inquiring into complaints against their colleagues and seniors. If a complaint
is received against a senior officer, it is impossible to enquire into that
complaint because an officer who is in vigilance today might get posted under
that senior officer some time in future.
* In some departments, especially in the Ministries , some officials double
up
as vigilance officials. It means that an existing official is given additional
duty of vigilance also. So, if some citizen complaints against that officer, the
complaint is expected to be enquired into by the same officer. Even if someone
complaints against that officer to the CVC or to the Head of that Department or
to any other authority, the complaint is forwarded by all these agencies and it
finally lands up in his own lap to enquire against himself. Even if he recuses
himself from such inquiries , still they have to be handled by those who
otherwise report to him. There are indeed examples of such absurdity.
* There have been instances of the officials posted in vigilance wing by
that
department having had a very corrupt past. While in vigilance, they try to
scuttle all cases against themselves. They also turn vigilance wing into a hub
of corruption, where cases are closed for consideration.
* Departmental vigilance does not investigate into criminal aspect of any
case.
It does not have the powers to register an FIR.
* They also do not have any powers against politicians.
* Since the vigilance wing is directly under the control of the Head of that
Department, it is practically impossible for them to enquire against senior
officials of that department.
* Therefore, , the vigilance wing of any department is seen to softpedal on
genuine complaints or used to enquire against " inconvenient" officers.
CBI: CBI has powers of a police station to investigate and register FIR. It can
investigate any case related to a Central Government department on its own or
any case referred to it by any state government or any court.
* CBI is overburdened and does not accept cases even where amount of
defalcation is alleged to be around Rs 1 crore.
* CBI is directly under the administrative control of Central Government.
* So, if a complaint pertains to any minister or politician who is part of a
ruling coalition or a bureaucrat who is close to them, CBI's credibility has
suffered and there is increasing public perception that it cannot do a fair
investigation and that it is influenced to to scuttle these cases.
* Again, because CBI is directly under the control of Central Government, CBI
is perceived to have been often used to settle scores against inconvenient
politicians.
Therefore, if a citizen wants to make a complaint about corruption by a
politician or an official in the Central Government, there isn't a single
anti-corruption agency which is effective and independent of the government,
whose wrongdoings are sought to be investigated. CBI has powers but it is not
independent. CVC is independent but it does not have sufficient powers or
resources.
Salient features of Jan Lokpal Bill
* An institution called LOKPAL at the centre and LOKAYUKTA in each state
will
be set up
* Like Supreme Court and Election Commission, they will be completely
independent of the governments. No minister or bureaucrat will be able to
influence their investigations.
* Cases against corrupt people will not linger on for years anymore:
Investigations in any case will have to be completed in one year. Trial should
be completed in next one year so that the corrupt politician, officer or judge
is sent to jail within two years.
* The loss that a corrupt person caused to the government will be recovered
at
the time of conviction.
* How will it help a common citizen: If any work of any citizen is not done
in
prescribed time in any government office, Lokpal will impose financial penalty
on guilty officers, which will be given as compensation to the complainant.
* So, you could approach Lokpal if your ration card or passport or voter
card
is not being made or if police is not registering your case or any other work is
not being done in prescribed time. Lokpal will have to get it done in a month's
time. You could also report any case of corruption to Lokpal like ration being
siphoned off, poor quality roads been constructed or panchayat funds being
siphoned off. Lokpal will have to complete its investigations in a year, trial
will be over in next one year and the guilty will go to jail within two years.
* But won't the government appoint corrupt and weak people as Lokpal
members?
That won't be possible because its members will be selected by judges, citizens
and constitutional authorities and not by politicians, through a completely
transparent and participatory process.
* What if some officer in Lokpal becomes corrupt? The entire functioning of
Lokpal/ Lokayukta will be completely transparent. Any complaint against any
officer of Lokpal shall be investigated and the officer dismissed within two
months.
* What will happen to existing anti-corruption agencies? CVC, departmental
vigilance and anti-corruption branch of CBI will be merged into Lokpal. Lokpal
will have complete powers and machinery to independently investigate and
prosecute any officer, judge or politician.
* It will be the duty of the Lokpal to provide protection to those who are
being victimized for raising their voice against corruption.
Jan Lokpal Bill will improve existing anti-corruption systems.
Existing System System Proposed by civil society
No politician or senior officer ever goes to jail despite huge evidence because
Anti Corruption Branch (ACB) and CBI directly come under the government. Before
starting investigation or initiating prosecution in any case, they have to take
permission from the same bosses, against whom the case has to be investigated.
Lokpal at centre and Lokayukta at state level will be independent bodies. ACB
and CBI will be merged into these bodies. They will have power to initiate
investigations and prosecution against any officer or politician without needing
anyone's permission. Investigation should be completed within 1 year and trial
to get over in next 1 year. Within two years, the corrupt should go to jail.
No corrupt officer is dismissed from the job because Central Vigilance
Commission, which is supposed to dismiss corrupt officers, is only an advisory
body. Whenever it advises government to dismiss any senior corrupt officer, its
advice is never implemented. Lokpal and Lokayukta will have complete powers to
order dismissal of a corrupt officer. CVC and all departmental vigilance will be
merged into Lokpal and state vigilance will be merged into Lokayukta.
No action is taken against corrupt judges because permission is required from
the Chief Justice of India to even register an FIR against corrupt judges.
Lokpal & Lokayukta shall have powers to investigate and prosecute any judge
without needing anyone's permission.
Nowhere to go - People expose corruption but no action is taken on their
complaints. Lokpal & Lokayukta will have to enquire into and hear every
complaint.
There is so much corruption within CBI and vigilance departments. Their
functioning is so secret that it encourages corruption within these agencies.
All investigations in Lokpal & Lokayukta shall be transparent. After completion
of investigation, all case records shall be open to public. Complaint against
any staff of Lokpal & Lokayukta shall be enquired and punishment announced
within two months.
Weak and corrupt people are appointed as heads of anti-corruption agencies.
Politicians will have absolutely no say in selections of Chairperson and members
of Lokpal & Lokayukta. Selections will take place through a transparent and
public participatory process.
Citizens face harassment in government offices. Sometimes they are forced to pay
bribes. One can only complaint to senior officers. No action is taken on
complaints because senior officers also get their cut. Lokpal & Lokayukta will
get public grievances resolved in time bound manner, impose a penalty of Rs 250
per day of delay to be deducted from the salary of guilty officer and award that
amount as compensation to the aggrieved citizen.
Nothing in law to recover ill gotten wealth. A corrupt person can come out of
jail and enjoy that money. Loss caused to the government due to corruption will
be recovered from all accused.
Small punishment for corruption- Punishment for corruption is minimum 6 months
and maximum 7 years. Enhanced punishment - The punishment would be minimum 5
years and maximum of life imprisonment.
Critique of Government's Lokpal Bill 2010
(Proposed to be passed as an ordinance by the Central government)
UPA government has been under constant attack due to exposure of one scam after
the other on the issue of corruption. In order to salvage its image, the
government proposes to set up an institution of Lokpal to check corruption at
high places. However the remedy seems to be worse than the disease. Rather than
strengthening anti corruption systems, this bill if passed, will end up
weakening whatever exists in the name of anti corruption today.
The principal objections to government's proposal are as follows:
* 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.
* 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. For instance, if there were such a Lokpal today and if
Lokpal made a recommendation to the PM to prosecute A. Raja, obviously the PM
will not have the political courage to initiate prosecution against A. Raja.
Likewise, if Lokpal made a report against the PM or any MP of the ruling party,
will the house ever pass a resolution to prosecute the PM or the ruling party
MP? Obviously, they will never do that.
* 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.
* 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.
* 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.
* 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.
* 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.
* 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.
* 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.
Therefore, the draft Lokpal ordinance is eyewash, a sham. It is sad that despite
so much of embarrassment caused to UPA due to so many scams, UPA is still making
a fool of the people in the form of this draft ordinance.
Should the Prime Minister be brought within the purview of the proposed Lokpal?
The Lokpal Is only an investigative body. If someone comes with credible proof
of corruption by the PM, No less than seven members of the eleven members of
Lokpal will look into the evidence and decide whether to investigate the PM or
not. If it is a frivolous or unsubstantiated complaint, the complainant will be
suitably punished. If the complaint has substance the Lokpal will investigate
the matter. The 5 ministers from the government said that if any enquiry starts
against the PM, the PM would lose all authority to govern and take decisions. We
reminded them that in Bofors case also, the then PM was under scanner. But that
did not deter him from taking decisions. If the PM takes many portfolios under
himself, then all those ministries will become exempt according to the
governments logic. Even in this governments own Lokpal bill, the PM was included
with some qualifications. Even today, the CBI can investigate the PM but the
problem is that the CBI is under the PM's administrative control so effective
investigation is not possible due to conflicts of interest. Therefore, we
believe that the PM cannot be exempted from corruption investigation by the
Lokpal.
Should the judges of the High Court and the Supreme Court be brought within the
purview of the proposed Lokpal?
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.
Historically, even those Chief Justices, who have been well known for their
honesty, have not granted these 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 grant 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!
There are many more instances when permission for registration of FIR has been
denied. Some such cases are mentioned below:
* Despite overwhelming evidence, request of the Campaign on Judicial
Accountability (represented by Shanti Bhushan, Prashant bhushan, Ram jethmalani,
Justice Rajender Sachhar, Indira jaisingh, Arvind Nigam etc) seeking permission
to register an FIR against Justice Bhalla of Allahabad High Court is pending
before the Chief Justice of India since 2006.
* Similarly, the request of Campaign for Judicial Accountability and Judicial
Reforms seeking to register FIR against Justice F I Rebello is pending since
September 2010. Therefore, the present system of seeking permission from the CJI
to register an FIR against a judge of SC or HC appears to have protected the
corrupt and encouraged corruption in higher judiciary.
Proposal:
A perception that the judiciary is being brought under the control of Jan Lokpal
has unfortunately been created. This is a myth that is being falsely propagated
and it 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 wing 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.
Critique of our proposal Our response
This would affect the independence of judiciary. How will it affect the
independence of judiciary? We have greatest respect for our judiciary and we
strongly stand for its independence. Most of the judges in higher judiciary are
honest. However, a few of them bring bad name to the whole judiciary due to
their wrongdoings. They ought to be identified and acted against. A system which
effectively does that would strengthen the independence of judiciary and
increase its credibility in the eyes of the public. Present system tends to
protect the corrupt and encourages corruption. Therefore, the present system
tends to lower the prestige and credibility of judiciary in the minds of the
people and compromises its independence.
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.
This would tremendously increase the workload of Lokpal 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.
Judicial matters are very technical. Therefore, Only people from judiciary
should deal with complaints against judges. Jan Lokpal Bill does not empower
Lokpal to go into or question the judicial procedures or decisions of judiciary.
It does not empower Lokpal to interfere with the professional (mis)conduct of
judges. It only empowers them to grant permission to register an FIR against a
judge against whom there are allegations of bribery. Giving and accepting bribe
is a criminal offence. There is no technicality involved in that.
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.
But the proceedings for impeachment of judges is already provided in the
Constitution. Are you suggesting an amendment to the Constitution? We are not
seeking any amendment to the constitution. We are not even touching the
provisions relating to impeachment of judges as 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.
What will happen to the Judicial Accountability Bill presented by the
Government? Judicial Accountability Bill does not talk of bribery by the judges.
It only talks of professional misconduct. Jan Lokpal talks of criminal
misconduct. Therefore, the two bills complement each other. The National
Judicial Commission sought to be created through Judicial Accountability Bill
will not have the police and investigative powers and machinery to deal with
criminal complaints of bribery. It could be done only by Lokpal.
Complaints against Lokpal members will go to Supreme Court and those against
Supreme Court judges will go to Lokpal. Would that not create some kind of
circularity? Such circularity is a part of internal checks and balances at top
levels in any democracy. For instance, Supreme Court keeps a check on
legislature and Executive and the Legislature has powers to legislate on
judicial matters.
If there is a complaint against a Supreme Court judge and a Lokpal member at the
same time, then obviously, the accused judge or the accused member will recuse
himself from the benches.
If ever such an eventuality happens, the transparency of proceedings in the two
institutions will keep a check on the possibility of any misuse. The hearings at
the two places will be open for the public and media.
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. There is no provision either in the constitution or in any
law which empowers the CJI to give permission before registration of an FIR
against any judge. Such a system was created by the Supreme Court through an
order in Veeraswamy case, in which the SC made it mandatory that permission
would need to be sought before registration of an FIR against any judge.
Interestingly, no frivolous FIR had ever been filed against any judge before
that judgement and such a judgement was completely uncalled for
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