Lokpal: Not a judges and lawyers clique, please – Rohit Srivastava & Sandhya Jain

Ideas “Lokpal will be a novel experiment in curbing corruption in high places, and should not get perverted or tainted by vested interests. Care must be taken to ensure that it does not become an illegitimate supra-government that can threaten and subordinate other branches of the State to a controlling clique that may be guided and controlled by external agencies seeking to subvert the national interest.” –  Rohit Srivastava & Sandhya Jain

L.M. SinghviSuccessive Governments at the Centre have tried to create the institution of Lokpal at the national level, after the idea was first mooted by late MP, Dr. L.M. Singhvi. These attempts did not meet with success and the issue was considered dead until, in recent times, it acquired a sudden urgency owing to a nation-wide sentiment of revulsion against corruption in Government, corporate life, and a naked business-politician-bureaucrat nexus, best symbolized by the Commonwealth Games and the 2G Spectrum Scam.

The public outcry against top level corruption lent strength to a nation-wide campaign for a national ombudsman, even as Government moved to mollify public sentiment by seeking resignations of high profile ministers and sending them, along with other influential persons, including top level civil servants, to jail, where many still languish for want of bail.

KanimohziAs an aside, we may mention that the Supreme Court’s decision to deny bail to the accused – which should be the norm rather than the exception – has given rise to fears that the court may be open to extra-judicial influences (particularly a well orchestrated media campaign) when dispensing justice in high profile cases. This causes apprehensions about the institution’s ability to dispense justice in an impartial and dispassionate manner; however, that is not the subject of this column.

Concerned citizens have meanwhile felt deep reservations about the manner in which some self-styled guardians of public morality hyper-ventilated over the issue of Lokpal, and tried to coerce Parliament to adopt a specific draft without the scrutiny of the parliamentary Standing Committee; without discussion in parliament; without the possibility of amendment(s). In truth, there is much that is defective in the different versions of the Jan Lokpal bill drafted by Team Anna, which has since got embroiled in serial controversies as some key leaders revealed their personal agendas, some of which were blatantly political and even subversive of national integrity and sovereignty.

This article mainly focuses upon the UPA government’s version of the Lokpal legislation [Bill No. 39 of 2011] that was tabled in the Lok Sabha on Aug. 4, 2011 but also looks at the issues arising from the Team Anna draft, and related sensitive issues agitating the national psyche.

India IncCorporates and Media

As the Commonwealth and 2G scams exposed a shocking nexus between politicians and corporates and bureaucrats, the institution of Lokpal would be relevant only if all these sectors are brought under its purview. It is understood that certain NGOs also secured government contracts during the Commonwealth Games; hence, there is no reason to keep them outside the Lokpal scrutiny.

The manner in which corporate public relations entrepreneur Niira Radia catapulted to national fame as a result of leaked tape recordings made by Income Tax authorities in another matter, exposed a hitherto unsuspected but organised Corporate-Media nexus of political influence-peddling, going so far as to ‘fix’ cabinet formation, with a view to influencing future contracts and licenses from a particular ministry. While the issue of the Telecommunications Ministry has specifically come to light, there is no gainsaying that such endeavours were not made in other areas of intense corporate interest, such as Petroleum, Mining, and so on. The relish with which some high profile journalists were found to be swimming in these murky waters, assuming roles way beyond the legitimate concern of newspersons, has seriously dented the image of the Media as a vigilant public watchdog. To put it simply, the Radia episode makes it unfair to keep Media out of the purview of Lokpal.

The Paid News of IndiaCoupled with this is the issue of “Paid News” which came to light during the last parliamentary elections. A sub-committee of eminent journalists appointed by the Press Council of India investigated the matter and submitted a fairly comprehensive and cogent report. Sadly and inexplicably, this report was rejected by the Press Council of India, for reasons that are not known. In fact, the Press Council of India put the report on its official website only under duress after an RTI application, with a disclaimer saying the report had not been accepted; again, no reasons were given. The episode underlines the inability or unwillingness of the Press Council to seriously address the issue of Media misdemeanours; hence there is no legitimate case for exempting the Media from the purview of Lokpal.

Corruption by Caste/Community?

There is simply no reason to entertain vexatious demands for reservations in Lokpal on either caste or communal grounds. Is there a national standard of corruption, with a fixed quantum of corruption by various communities and castes?

Corruption is the moral failure of an individual, abetted very often by a ‘system’ that makes it difficult to catch and punish a wrong-doer. It is this anomaly that the public sentiment behind the Lokpal movement seeks to address; Anna Hazare’s initial rejection of quotas in the Lokpal was correct and principled. As Indian criminal law applies equally to all – and corruption is a crime and a criminal matter – we should shun moves to introduce caste or communal quotas in the fight against corruption in high places.

It is worth recalling that in two recent cases of corruption involving a retired Chief Justice of India, and the Chief Justice of a High Court, the specious argument was offered that the said persons were being targetted because they belonged to a disadvantaged section of society! Not once was it said that the allegations were false; the said gentlemen are resisting inquiry into allegations against their conduct in office. To introduce extraneous considerations like caste and community into the investigation of crime would be injurious to national unity and against national interests. Above all, it would defeat the very purpose of Lokpal, as it would introduce fears that wrong-doers would be punished or set free on caste or communal considerations.

World VisionNGOs, PM

Former Bihar chief minister Lalu Prasad Yadav stated during the Parliamentary debate that many NGOs took foreign money to indulge in covert agendas, and keeping them outside the purview of Lokpal would make the entire exercise pointless. The government legislation seems to have provided for such scrutiny, and should be supported.

It is, however, fitting that a sitting Prime Minister should not be brought under purview of Lokpal in order to maintain the dignity of the high office and inhibit nuisance complaints that may hinder effective functioning of the Government and damage its credibility abroad.

Lady JusticeNo Judicial Oligarchy

Discerning observers have serious reservations about having Judges or Lawyers as Members of Lokpal (the proposed composition of Lokpal, suggests a Chairperson and eight members, 50% of which would be judicial members). The government draft moots that the Chairperson be a sitting or former Chief Justice of India or a Judge of the Supreme Court, and 50% Members be either a Judge of the Supreme or a Chief Justice of a High Court. Other members could be chosen from among those with expertise of 25 years in anti-corruption policy, public administration, vigilance, finance inc. Insurance and banking, law and management; this latter seems unexceptionable.

Our objection to the Judiciary is that, unlike Members of Parliament who are accountable to the public, there is at present NO effective system of controlling judicial corruption and bringing judges to account for malpractices. Hence it may be unwise to entrust a fledgling institution like Lokpal to the judiciary or legal fraternity, which is an intrinsic part of the functioning of the judicial system.

To cite some reservations:-

– A former CJ of the Supreme Court was appointed chairperson of the National Human Rights Commission when serious charges of disproportionate wealth accumulation were levelled against his close kin. He refused to step down and undergo scrutiny; he has rebuffed an RTI appeal to disclose his income tax returns for the time he was CJI. There seems to be no way to proceed against him.

– Worse, there is no mechanism to re-visit controversial judgments he may have made during his tenure. Indeed, his very last judgment deserves scrutiny following CAG strictures against the very corporate that vastly profited from his ruling; but no such move has been made.

– It is pertinent that neither the Judiciary nor the Legal Fraternity spoke out against the UPA’s shameful refusal to give the post of NHRC chairperson to the most honest former CJI, only because he was perceived as being ‘pro-Hindu’. Actually, this only meant that he was not rabidly anti-Hindu, and this was reputedly held against him by the Roman Catholic chairperson of the UPA, who eventually opted for a co-religionist after keeping the post vacant for more than six months.

– Another former CJI resigned from the headship of a special hospital for Bhopal gas victims when it was found that the hospital was catering to the elite, and not the victims. This shameful episode in Indian judicial history was quickly glossed over by a complicit Media.

– A judge who was being impeached in Parliament resigned midway, when it became clear that he would be impeached. This resulted in the proceedings being dropped. Is resignation enough to protect judges under scrutiny? Can other criminals expect similar parity?

– Recently, the newly-appointed Lokayukta in Karnataka resigned after he was found to be involved in controversial land deals.

– Soon after, a deputy Lokayukta in the same state resigned following rumours that his land holdings were likely to come into the public domain. Needless to say, there has been no investigation into the said land deals, which prima facie, would seem to be improper.

Now let us look at Activist Lawyers who claim to be the guardians of public morality.

– Lawyers are supposed to uphold the constitution. But one luminary suggested that a state with some unrest may be allowed to secede from the nation. His fraternity has maintained silent on this treason.

– Worse, when some agitated young men roughed him up in his Supreme Court chamber, they were arrested and cases filed against them. But not one legal luminary asked how one of the culprits was bruised and bleeding after being caught (as shown on television), while the treason-happy lawyer did not have even his shirt torn. We are thus witnessing a unique event in our legal history – a person guilty of a misdeed (roughing up a lawyer) is subsequently roughed up harder, which should make the score even. Instead, he is arrested and a case filed, as a result of which he will probably be punished, for the same offence, twice. This does nothing for one’s faith in the community of lawyers.

– Many high profile lawyers have been happy to receive land allotments from state leaders arraigned in corruption cases.

– Despite laws against farmland sales to gentleman farmers in some states, high profile lawyers have accepted out of turn allotments of farm land.

– An eminent advocate is facing a probe after a CD surfaced in which he allegedly negotiated for a huge sum to ‘manage’ a Supreme Court judge in a difficult case.

– In the Bhopal Gas Tragedy, one of the worst industrial disasters in India, leading lawyers were found on the payroll of Union Carbide, rather than on the side of the victims. Many lawyers accepted retainerships in order to reject the victims’ brief. We do not know the legality or morality of this action, but we do feel that the public cannot repose blind faith in lawyers as National Ombudsmen after this episode.

Manmohan SinghBy the same logic, we feel that the Selection Committee to select Lokpal members should also not include judges or lawyers. Otherwise, Lokpal would inevitably become a ‘club’ selected by a judicial clique that will exercise disproportionate influence over other committee members. The committee could include successful whistleblowers, RTI activists, and public spirited persons.

Nor, in our view, should there be a Search Committee to advice the Selection Committee. Rather the Selection Committee headed by the Prime Minister could invite public recommendations within a specified period. Persons proposing names should give clear reasons why s/he is recommending a particular person; there should be no weightage for getting more endorsements than other candidates. The PMO could serve as nodal agency to process the recommendations. However, if Parliament still favours a Search Committee, there should be no remuneration for members and work should be voluntary.

The term of Lokpal should be three years (not five), so that vested interests do not develop, and non-performers can be quickly eased out. As Lokpal is a new institution, the age limit for Members should be same 62 years as in Government service; Lokpal should NOT become a gubernatorial post for favoured persons. Lokpal can be drawn from experts in Government service, from departments skilled in detecting corruption, and as it is publicly funded the rules of pay and pension would apply as relevant.

Removing Lokpal should not need 100 MP signatures, as that could inhibit action against the corrupt. As there is provision for ordinary citizens to complain directly to the President, that should be enough. Vacancies in the Lokpal can be filled from a stand-by list prepared by government at the time of making appointments. This will defer delays in filling vacancies. UPSC standards can be followed for appointments.

Investigation, Prosecution

As Lokpal is an investigating agency, and will have a prosecution wing, there will be ample scope for providing employment to lawyers, both by the Lokpal and by the accused. It would be fair to limit the remuneration to lawyers so that accused persons are not subjected to crippling expenses.

It follows that if the Lokpal itself comprises of judges or lawyers, there could be too many overlapping circles of interest and possible conflicts. Should the Lokpal be a judge, Parliament could consider extending the rule about kin appearing in the same court in the same city to Lokpal as well.

Consolidated Fund of India

There is no valid reason for give a fledgling institution like Lokpal the power to charge its expenses directly to the Consolidated Fund of India, when such a power has not yet been granted to the Election Commission which plays a vital role in our democracy, and is widely esteemed for its conduct of free and fair elections.

Jurisdiction

The jurisdiction of Lokpal should be confined to officers of the rank of Joint Secretary and above, all ministers (barring PM) and MPs; Lokayuktas should cover State ministers, MLAs, government servants at state level. Inter-connected corporates, NGOs, Media persons, etc would be covered by Lokpal at Centre and State levels.

The provision of Government sanction before investigating any officer against whom a prima facie case is made must be done away with, if Lokpal is to be meaningful.

Lokpal Benches should be fixed at the beginning of the term of Lokpal, and should not be liable for change as this could cause suspicion of bench fixing or bias. No case should be transferred from one bench to another without assigning reasons in writing.

Powers & Appeal

Lokpal should be confined to corruption cases only, which are criminal cases, and not civil cases. On no account should Lokpal have the power to attach property during pendency of a case. Property attachment is a serious business and should take place only after it is proved that the said property is the proceeds of corruption, and due process has been followed. Else there will be miscarriage of justice, and much scope for corruption in releasing property that has been wrongfully attached. This power could also be misused for blackmail and covert corruption.

Lokpal is a special kind of court. As Lokpal collects and weighs the evidence in cases of corruption, and pronounces judgment (and even punishment, if any), the Supreme Court should be the final court of appeal, and should give its decision within a specified time frame. Lokpal will be meaningful only if it works in a time-bound manner.

Hence, it follows that judges or lawyers should not be Members of Lokpal, for when a case goes in appeal to the Supreme Court, the Hon’ble judges may be reluctant to overrule decisions of fellow judges from the SAME COURT who may be senior to them.

Foreign-funded persons

Given the experiences of many nations with foreign-funded NGOs and sponsored revolutions that only add to the instability of the world we live in, it would be appropriate to spell out other categories of persons who should be excluded from this august office:

– Any person who has received a monetary purse from a foreign government or institution or foundation

– Any person who has been associated with an international body that interferes in the internal affairs of other nations, such as Amnesty International, Human Rights Watch, etc

– Any person or NGO that has received funds from a foreign organization or person to do advocacy in his/her home country, such as promoting GMO seeds, or campaigning for or against specific laws

– Any person who has attended international seminars funded by persons linked with ISI or any other anti-India body

– A non-resident Indian

– A person of Indian origin, who is no longer a citizen of India

Anna HazareIn sum, Lokpal will be a novel experiment in curbing corruption in high places, and should not get perverted or tainted by vested interests. Care must be taken to ensure that it does not become an illegitimate supra-government that can threaten and subordinate other branches of the State to a controlling clique that may be guided and controlled by external agencies seeking to subvert the national interest.

In recent times, the manner in which the head of the International Monetary Fund was accused of sensational charges and forced out of office – only to have the charges dropped as unsustainable – should serve as a warning about the need to select to the office of Lokpal persons of immense sobriety and integrity, who do not play to a national or international gallery. – Vijayvaani, New Delhi, 5 Nov. 2011

» Rohit Srivastava is a senior journalist; Sandhya Jain is Editor of www.vijayvaani.com

» The article is based upon a presentation made by the authors before the Hon’ble Members of the Standing Committee on Personnel, Public Grievances, Law & Justice – The Lokpal Bill, on 21 October 2011

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