Why I Am Opposing Ann's Jan Lokpal Bill

8/4/2019 Why I Am Opposing Ann's Jan Lokpal Bill

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Anna hazare team : threat for democracy

Some significant comparisons of Jan Lokpal with Lokpal Bill, 2011

Provision Jan Lokpal Lokpal

Selection

Committee

1. Prime Minister

2. LoP in Lok Sabha

3. 2 judges of Supreme Court

4. 2 judges of High Courts selected by

Supreme Court collegium.

5. Chief Election Commissioner

6. CAG

7. All previous Chairpersons of Lokpal

1. Prime Minister

2. Speaker of Lok Sabha

3. LoP in Lok Sabha

4. LoP is Rajya Sabha

5. One Union Cabinet Minister

6. One Sitting judge of SC

7. One eminent jurist nominated by

Central Govt.

8. One eminent person with knowledge

& experience in various fields to benominated by Central govt.

Comments on Jan Lokpal Bill

Only two public representatives would be in the Selection Committee.

No representation of the Rajya Sabha

Overwhelming majority of judges and bureaucrats

What is the rationale for having CAG in the Selection Committee?

(Anna Hazare himself is not eligible as per Jan Lokpal but eligible in govt.

Lokpal in clause 8)

Search

Committee

1. Shall consist of 10 members.

2. 5 of its members shall be from

retired Chief Justices of India, the

retired Chief Election Commissioners

and retired CAGs with impeccable

reputation of integrity, who have not

joined any political party after

retirement and who are not holding

any office under any government.

3. These 5 members shall co -optanother 5 members from the Civil

Society in the search committee.

The Selection Committee may, if it

considers necessary, constitute a

Search Committeeconsisting of such

persons of standing and having special

knowledge and expertise in the matters

relating to anti-corruption policy, public

administration, vigilance, policy making,

finance including insurance and

banking, law, and management, or in

any other matter which, in the opinionof the Selection Committee, may be

useful in making selection of the

Chairperson and Members of the

Lokpal.

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Five members of Search Committee would comprise entirely of retired

judges, CECs & CAGs

These five persons will appoint any 5 members of their choice from Civil

Society. No definition of Civil Society

Extraordinary and bizarre provision that one half of committee will handpick

another half. Why?

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Members 1. Search Committee will invite

nominations from such eminent

individuals, whom they deem fit, for

the position of Chairperson or the

members of Lokpal.

2. Only persons with impeccableintegrity and record of public service

particularly in the field of fighting

corruption shall be eligible for being

considered for nomination.

3. Atleast 4 members of Lokpal shall

have a legal backgroun .

4. Chairperson shall be a person with

extensive knowledge of law.

5. Chairperson or members shall not

be serving member of either the

Parliament or the Legislature of any

State and shall not hold any office of

profit or carry on any business or

practice any profession and

accordingly, before he enters upon his

office, a person appointed as the

Chairperson or member of Lokpal

shall-

(i) if he holds any office or profit,

resign from such office; or

(ii) if he is carrying on any business,sever his connection with the conduct

and management of such business; or

(iii) if he is practicing any profession,

suspend practice of such profession,

or

(iv) if he is associated directly or

indirectly with any other activity,

which is likely to cause conflict of

interest in the performance of his

duties in Lokpal, he should suspend

his association with that activity.

(2) The Lokpal shall consist of

(a) a Chairperson, who is or has been a

Chief Justice of India or a Judge of the

Supreme Court; and

(b) such number of Members, not

exceeding eight out of whom fifty percent shall be Judicial Members.

(3) A person shall be eligible to be

appointed,

(a) as a Judicial Member if he is or has

been a Judge of the Supreme Court or a

Chief Justice of a High Court;

(b) as a Member other than a Judicial

Member, if he is a person of impeccable

integrity, outstanding ability and

standing having special knowledge and

expertise of not less than twenty -five

years in the matters relating to anti -

corruption policy, public administration,

vigilance, finance including insurance

and banking, law, and management.

(4) The Chairperson or a Member shall

not be a member of Parliament or a

member of the Legislature of any State

or Union territory and shall not hold any

office of trust or profit (other than the

office as the Chairperson or a Member)or be connected with any political party

or carry on any business or practise any

profession and accordingly, before he

enters upon his office, a person

appointed as the Chairperson or a

Member, as the case may be, shall, if

(a) he holds any office of trust or profit,

resign from such office; or

(b) he is carrying on any business, sever

his connection with the conduct and

management of such business; or(c) he is practising any profession, cease

to practise such profession.

(5) The Chairperson and every Member

shall, before entering upon his office,

make and subscribe before the President

an oath or affirmation in the form set

out in the First

Schedule.

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Search Committee will invite nominations from the persons whom they

deem fit. Why?

An important qualifying criterion is record of public service particularly in

the field of fighting corruption shall be eligible for being considered fornomination. Why?

Contrast this with the criterion in governments Lokpal Bill that says

person of impeccable integrity, outstanding ability and standing having

special knowledge and expertise of not less than twenty -five years in the

matters relating to anti-corruption policy, public administration, vigilance,

finance including insurance and banking, law, and management. Which is

better and more wholesome?

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Functions

and Powers

1. to exercise superintendence over the

investigatio of offences involving any

act of corruption.

2. to give directions to the investigating

officers for the purpose of properinvestigation of such offences.

3. after completion of investigation in

any case involving an allegation of an

act of corruption, to impose

punishment of dismissal, removal or

reduction in rank against government

servants after giving them reasonable

opportunities of being heard.

4. to initiate suo moto appropriate

action under the Act on receipt of any

information from any source about

any corruption.

5. to make recommendations to public

authorities,

6. The Investigating Officers of Lokpal

authorized to investigate offences

under the Prevention of CorruptionAct 1988 shall have all the powers

which are vested in a Police Officer

while investigating offences under the

Code of Criminal Procedure, as well as

the powers conferred on the director

of enforcement under the Foreign

Exchange Management Act, 1999 as

well as under the Prevention of Money

Laundering Act, 2002.

7. The members of Lokpal or anyofficer under the Lokpal while

exercising any powers under the Act

shall have the powers of a civil court

trying a suit under the Code of Civil

Procedure, 1908..

8. If during the course of investigation

into a complaint, the Lokpal feels that

continuance of a government servant

in that position could adversely affect

the course of investigations or that the

said government servant is likely to

destroy or tamper with the evidence or

influence the witnesses or is likely to

continue with corruption, the Lokpal

may issue appropriate directions

including transfer of that government

1. Notwithstanding anything contained

in any law for the time being in force,

the Lokpal shall constitute an

Investigation Wing for the purpose of

conducting investigation of any offence

alleged to have been committed by apublic servant punishable under the

Prevention of Corruption Act, 1988:

2. No investigation shall be made by an

investigation officer of the Investigation

Wing below the rank of a Deputy

Superintendent of Police or by any

other officer of equivalent ran .

3. The investigation officers of the

Investigation Wing shall have, in

relation to the investigation of such

offences referred to in sub-section (1) of

section 12, all the powers, duties,

privileges and liabilities which police

officers have in connection with the

investigation of such offences under the

Prevention of Corruption Act, 1988.

4. The Lokpal may, before holding any

inquiry under this Act, by an order,require the investigation officer of its

Investigation Wing to make, or cause to

be made, a preliminary investigation in

such manner as it may direct and submit

a report to the Lokpal, within suchtime

as may be specified by the Lokpal, to

enable it to satisfy itself as to whether or

not the matter requires to be inquired

into by the Lokpal.

5. The investigation officer on receipt ofan order under sub -section ( 1) shall

complete the investigation and submit

his report within the time specified

under that sub-section

6. The Lokpal may, by notification,

constitute a prosecution wing and

appoint a Director of prosecution and

such other officers and employees to

assist the Director of Prosecution for the

purpose of prosecution of public

servants in relation to any complaint by

the Lokpal under this Act.

7. The Director of prosecution shall,

after having been so directed by the

Lokpal, file a complaint before the

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Comment on Jan Lokpal Bill

The Jan Lokpal will have powers to/ of

superintendence on investigation

impose punishment

Director of Enforcement

Civil Court

Intercept phone calls, data transmission

Issue search warrants

Transfer government servants

How can investigation, executive and judicial powers be vested in same

authority?

Jan Lokpal will supervise and give directions to investigating authorities.

This amounts to influencing the investigation. How will then the

investigation be fair and unprejudiced?

The Jan Lokpal can order transfer of government servant if government

servant is likely to destroy or tamper with the evidence or influence thewitnesses or is likely to continue with corruption. Does it mean that he

can also exercise this power to transfer judges or ministers or even the

PM?

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INVESTIG

ATION

AND

PROSECUT

ION

AGAINSTHIGH

FUNCTION

ARIES

(1) No investigation or prosecution

shall be initiated without obtaining

permission from a 7-Member Bench of

the Lokpal against any of the

following persons:-

The Prime Minister and anyother member of the

Council of Ministers

Any judge of the Supreme

Court or any High Court

Any Member of the Parliament

(1) Subject to the 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 complaint in

respect of the following, namely:

(a) a Prime Minister, after he has

demitted the office of the Prime

Minister;

(b) any other person who is or has been

a Minister of the Union;

(c) any person who is or has been a

Member of either House of Parliament;

(2) Where, after the conclusion of the

inquiry or investigation, the findings of

the Lokpal disclose the commission of

an offence under the Prevention of

Corruption Act, 1988 by a public

servant referred to in clause (a) or clause

(b) of sub -section (1) of section 17, the

Lokpal may file a case in the Special

Court and shall send a copy of the

report together with its findings to the

competent authority.

(3) The Prime Minister, in the case of

the Minister, the Speaker in the case of a

Member of the House of the People,

and the Chairman of the Council of

States, in the case of a Member of that

Council shall, as soon as may be, after

the receipt of 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 insession, 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.

(4) 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 receipt of the

report, the action taken or proposed to

be taken on the basis of the report.7


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Comments on Jan Lokpal

It would require the consent of just 7 members of Jan Lokpal to initiate

investigation against the Prime Minister or Chief Justice of India.

Moreover, it such 7 members could also decide to permit prosecution of

the Prime Minister or Chief Justice of India. The investigation against the PM or CJI can also include interception of

their phone calls, data communication and transfer of government officers

of PMO and Supreme Court/ High Courts. There is no safeguard in the

Jan Lokpal Bill against such possibilities.

Not to forget that these members would be selected by completely

arbitrary selection process and Selection Committee mentioned above.

Is it fight against corruption or acoup?

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Investigation

of others

i) anything made punishable under

Chapter IX of the Indian Penal Code

or under the Prevention of Corruption

Act, 1988; which would also include

any offence committed by an elected

member of a house of legislature even

in respect of his speech or vote inside

the house.

ii) willfully giving any undue benefit to

any person or obtaining any benefit

from any public servant in violation of

any laws or rules,

iii) victimization of a whistleblower ora witness.

iv) repeated violation of citizens

charter by any public servant.

Public servant shall have the same

meaning as defined in section 2(c) of

Prevention of Corruption Act 1988.

(1) any Group A officer or equivalent

or above, from amongst the public

servants defined in sub -clauses ( i) and

(ii) of clause ( c) of section 2 of the

Prevention of Corruptions Act, 1988

when serving or who has served, in

connection with the affairs of the Union;

(2) any person who is or has been a

chairperson or member or officer

equivalent to Group A officer referred

to in clause (d) or equivalent or above in

any body or Board or corporation or

authority or company or society or trust

or autonomous body (by whatevername called) established by an Act of

Parliament or wholly or partly financed

by the Central Government or

controlled by it:


director, manager, secretary or other

officer of every other society or

association of persons or trust (whether

registered under any law for the time

being in force or not) wholly or partly

financed or aided by the Government

and the annual income of which

exceeds such amount as the Central

Government may by notificationspecify;


director, manager, secretary or other

officer of every other society or

association of persons or trust (whether

registered under any law for the time

being in force or not) in receipt of any

donation from the public and the annual

income of which exceeds such amount

as the Central Government may by

notification specify:

Provided that nothing in this section

shall apply in relation to the PrimeMinister, in whatever capacity he may

be holding an office as a public

functionary:

Provided also that nothing in clauses ( e

and (f) and this clause shall apply to any

society or association of persons or trust

constituted for religious purposes.

(5) Notwithstanding anything contained

in sub -section (1), 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 ofParliament in respect of anything said or

a vote given by him in Parliamen or any

committee thereof covered under the

provisions contained in clause (2) of

article 105 of the Constitution.

Provided that, no action under this

section shall be taken in case of a person

serving in connection with the affairs of

a State, without the consent of the State

Government.

(6) No sanction or approval shall be

required by the Lokpal or its

Investigation Wing under section 197 of

the Code of Criminal Procedure, 1973

or section 19 of the Prevention of

Corruption Act, 1988 for the purpose of

making inquiry by the Lokpal or

investigation by its Investigation Wing

into any complaint against any public

servant or for filing of any complaint in

respect thereof before the Special Court

under this Act.

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Comments

Jan Lokpal covers all government servants, all elected representatives,

entire judiciary.

Unlike the government Lokpal Bill, NGOs are not covered by Jan Lokpal

How many lakh persons would be required to investigate and prosecute

all above?

Society, associations and trusts constituted for religious purposes would

not be covered under government Lokpal Bill.

POWERS

OF

LOKPAL

TO MAKE

REGULATI

ONS

(1) The Lokpal may by notification

make regulations consistent with this

Act to carry out the provisions of this

Act.

(2) In particular and without prejudice

to the generality of the powercontained in sub-section (1) any such

regulations may provide for all or any

of the following matters, namely:-

any such regulations may provide for

all or any of the following matters,

namely:-

a) the creation of different wings in the

Lokpal to deal with different subjects

like investigation, prosecution andgrievances;

b) the conferment of authority on

officers at different levels to exercise

powers under the Act and to lay down

the procedure for any inquiries

including those relating to complaints

against its officers or members of staff

c) periods within which the

investigations and inquiries

3) The regulations framed by the

Lokpal under this Section shall be laid,

as soon as may be after they are issued

or made, before each House of

Parliament.

(1) Subject to the provisions of this Act

and the rules made thereunder, the

Lokpal may, by notification make

regulations to carry out the provisions

of this Act.

(2) In particular, and without prejudice

to the generality of the foregoing power,such regulations may provide for all or

any of the following matters, namely:

(a) the conditions of service of the

secretary and other officers and staff of

the Lokpal and the matters which in so

far as they relate to salaries, allowances,

leave or pensions, require the approval

of the President under sub-section (2) of

section 11;

Every rule and every regulation madeunder this Act shall be laid, as soon as

may be after it is made, before each

House of Parliament, while it is in

session, for a total period of thirty days

which may be comprised in one session

or in two or more successive sessions,

and if, before the expiry of the session

immediately following the session or the

successive sessions aforesaid, both

Houses agree in making any

modification in the rule or regulation, orboth Houses agree that the rule or

regulation should not be made, the rule

or regulation shall thereafter have effect

only in such modified form or be of no

effect, as the case may be; so, however,

that any such modification or

annulment shall be without prejudice to

the validity of anything previously done

under that rule or regulation.

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Comments

The Jan Lokpal will have sovereign authority in all aspects, like the one

given to the legislature and the judiciary. Why?

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Documents

Why I Am Opposing Ann's Jan Lokpal Bill