Monday, August 22, 2011
LOK PAL BILL - SUGGESTIONS MAILED TO RAJYA SABHA SECTT - DATED 22.08.2011 (POST.2) = JURISDICTION,ACCOUNTABILITY OF LOK PAL ETC
FIGHT AGAINST CORRUPTION
SUGGESTIONS TO PARLIAMENT
ON LOK PAL BILL
(Continued from Post.1)
INCLUSION OF ALL GROUPS OF STAFF UNDER LOK PAL
Government Bill says – Only Group A shall come under Lok Pal. Not others.
Jan Lok Pal Bill says – all should come under Lok Pal.
SOLUTION : All Groups (A, B, C and D) must technically come under Lok Pal. But, Lok Pal must directly investigate only Groups A and B – which are both key functionaries under Government.
Grs. C & D must be handled by the respective departmental Anti-Corruption / Vigilance wings as at present.
But, today, their performance is not much satisfactory – because, their staff are drawn from the same department ( and even same office ) and go back after some years to the same department and same office. So, they are subject to all pulls and pressures. Their investigation is not unbiased. Huge bias enters into their methods of selection of cases for investigation, methods of investigation and in recommending punishments. The Punishments are not at all uniform for the same type of offences.
There is a huge need to standardize punishments for same offence – to reduce bias.
Hence, the personnel for the departmental Anti-corruption / vigilance wings must be selected by Lok Pal on inter-departmental basis – and not on intra-departmental basis - and they must function under Lok Pal only.
They will have full authority to investigate every case of complaint and recommend punishments for corruption. They will report details to Lok Pal monthly. Lok Pal will have full authority to re-investigate any serious case, if it wants to. Non-corruption cases can be handled by the departments themselves.
The same thing holds good for Lok Ayukth at state level.
ACCOUNTABILITY OF LOK PAL / LOK AYUKTH
In this case – I am not in agreement with both drafts.
Jan Lok Pal Bill wants Lok Pal’s accountability to Public. Accountability to 120 crores of public, in any form, is meaningless and ineffective.
Government Draft wants accountability to Government – on which Lok Pal exercises its Jurisdiction for its corruption – and hence, this too is meaningless and ineffective.
SOLUTION : Both Lok Pal and Lok Ayukth must be accountable only to the Supreme Court of India – which must have the final say / approval in their appointments as well – though committees may be formed as stated in JAN Lok Pal Bill draft.
To re-emphasize, the principle of accountability to Public or to Government are both equally meaningless. Supreme Court is the only authority to whom these constitutional functionaries must be accountable. Supreme Court may in its wisdom, nominate the Judicial Lok Pal to look at the Lok Pal / Lok Ayukth’s monthly or quarterly reports and submit its report to a 3 member Bench of the Supreme court. Supreme Court may issue whatever advices it wants to – to Lok Pal and Lok Ayukth, for handling of cases.
However, Lok Pal may submit advisory reports and statistical reports to Parliament – for its views and consideration. Parliament may also send its review report to Lok Pal for its consideration.
METHOD OF ENQUIRY & PUNISHMENTS
In this respect also , I strongly differ from Both Drafts.
I was in Government / PSUs for about 42 years – and I have seen why many people fall prey to the temptation of bribery. Most of these people are reformable. Some people are corrupt under compulsion. Corruption is usually a coterie Business. Therefore, I do not recommend a punishments like sending to jail for a term – for most cases of first offence.
Our legal systems must not always remain PUNITIVE in nature but must become REFORMATIVE in Nature.
Present Methods of enquiry have developed on the experience of several decades and are adequate. The only thing required is - every enquiry must conclude within a maximum of 6 months. If we dump all cases before Lok Pal – each case will take decades – like in our legal system now. Justice will be delayed and denied in the process – both to the complainant and to the accused.
Therefore, only Gr.A and B are good enough for Lok Pal – but Lok Pal can over see the Departmental vigilance wings on cases of Gr.C and D.
Is Jail sentence to be totally ruled out ? No. Let it come in, from the second offence. Not from the first offence. First offence, unless too serious need not go to courts of Law. Punishment should be imposed by Lok Pal / Lok Ayukth, through controlling departmental officers, who shall have no option in the matter.
In respect of Gr. A officers – today, the UPSC plays a large part in reducing the punishments recommended by CVC for them. This is bad. Once Lok Pal comes in – the provision for UPSC consultation and discretion must be done away with in respect of corruption cases. Or else, the whole process done by Lok Pal ends in a farce. The officer escapes with his offence, because of the tortuous process of UPSC consultation. This is so in respect of many CVC recommendations in case of UPSC recruits (Gr.A officers).
This is for Government officers – not ministers. For Ministers – Let Lok Pal decide punishment based on Gravity of offence and recommend to the courts of Law.
PROTECTION TO COMPLAINANTS & WHSITLE BLOWERS
There should be adequate protection to complainants and whistle Blowers. They should not be subjected to punishments themselves. Lok Pal must take up cases where there is prima facie some evidence or strong circumstances to believe the complaint.
Since Corruption is widely prevalent – “boss, subordinate, their bosses and their subordinates” are all likely to be in a ring of corruption, each protecting the other. Therefore, it is not easy for a complainant to prove a particular case. The Lok Pal has to devise several methods to trap the culprits – but that can happen only in future cases – the particular case of complainant relating to past may not be possible to prove.
But, at the same time, false complainants like contractors want to trap even an honest officer in a false case. This must be kept in mind. So, if a complainant is to be punished, the intention o complainant must be ascertained very clearly. Here also – first offence must be disposed off with fine. Second offence onwards only – Jail sentence etc must come into picture – that too very rarely.
It depends on the wisdom of Lok Pal / Lok Ayukth. If he punishes complainants and whistle blowers, his sources of corruption cases will dry up – as has happened in case of the Police Departments, who harass the informers of crimes often. So nobody comes up with information now.
Also, complainants and whistle blowers are subject to harassment by the corrupt officers / Ministers. Many RTI activists were killed or harassed in many states by contractors, Government setup and so on. Wherever needed, Lok Pal / Lok Ayuktha must in fact provide them Protection. He should have necessary powers for the same.
SOLUTION : There shall be no punishments for complainants / whistle Blowers in case, the complaints cannot be proved. But if the complaint is totally proved to be a false complaint motivated to implicate an honest officer, then, Lok pal must have powers to impose fines in case of first offence and Jail term for subsequent offences, which must not exceed 6 months in any case.
SPECIAL BENCHES IN HIGH COURTS FOR APPEALS
Special Benches are essential to fast track the cases and complete them within 6 months maximum. Otherwise, justice will be delayed by decades as in other cases at present.
Lok Pal will decide the Budget and it will be a charge on consolidated Fund of India. The processes will be same as on case of Supreme court and other constitutional functionaries whose expenses are a charge on consolidated fund of India. Similarly, Budgets of Lok Ayukth will be a charge on the consolidated fund of the states.
PREVENTION OF CORRUPTION ON PRO-ACTIVE BASIS
Lok Pal shall be entitled to take adequate steps or prescribe procedures to prevent Corruption on Pro-active basis. CVC has been prescribing several steps in the past also for preventing Corruption.Lok Pal shall have authority to supplement existing rules and procedure to strengthen them to prevent corruption.
RIGHT TO TAP PHONES
Both Government and Lok Pal shall have power to TAP Phones for pro-active prevention of corruption. But, all cases of Tapping of phones shall be with adequate reasons recorded in writing and decision shall be taken at a high level.
DELEGATION OF DUTIES BY LOK PAL
Lok Pal shall have powers to delegate duties to officers working under him. Powers of Interrogation shall be delegatable only up to a certain Higher level – commensurate with the seriousness of the complaints and rank of the authority complained against.
Lok Pal’s jurisdiction shall extend to all PSUs, as they are already covered under CVC Act . And, CVC shall come under Lok Pal.
NGOs funded by State Governments – may come under Lok Ayukth of the state in which they are situated.
NGOs funded by central Government may come directly under Lok Pal.
The Lok Pal / Lok Ayukth must have adequate Powers to investigate and launch prosecution and recommend punishments as aforesaid. Government shall have no functional control on Lok Pal. The principle of Judicial Independence shall apply equally to Lok Pal/ Lok Ayukth. They shall be bound to complete each case within 6 months in over 95% of the cases. Other complicated cases may extend by another 6 months.
* * * JAI HIND * * *