Anna hazare team : threat for democracy

Some significant comparisons of Jan Lokpal with Lokpal Bill, 2011 Provision Selection Committee Jan Lokpal 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 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 be nominated 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 -opt another 5 members from the Civil Society in the search committee. The Selection Committee may, if it considers necessary, constitute a Search Committee consisting 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 opinion of the Selection Committee, may be useful in making selection of the Chairperson and Members of the Lokpal.

Comments on Jan Lokpal Bill 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?

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 impeccable integrity 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 background. 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 per cent 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.

Comments on Jan Lokpal Bill 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 for nomination. 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?

Functions and Powers

1. to exercise superintendence over the 1. Notwithstanding anything contained investigation of offences involving any in any law for the time being in force, act of corruption. the Lokpal shall constitute an Investigation Wing for the purpose of 2. to give directions to the investigating conducting investigation of any offence officers for the purpose of proper alleged to have been committed by a investigation of such offences. public servant punishable under the Prevention of Corruption Act, 1988: 3. after completion of investigation in any case involving an allegation of an 2. No investigation shall be made by an act of corruption, to impose investigation officer of the Investigation punishment of dismissal, removal or Wing below the rank of a Deputy reduction in rank against government Superintendent of Police or by any servants after giving them reasonable other officer of equivalent rank. opportunities of being heard. 3. The investigation officers of the 4. to initiate suo moto appropriate Investigation Wing shall have, in action under the Act on receipt of any relation to the investigation of such information from any source about offences referred to in sub-section (1) of any corruption. section 12, all the powers, duties, privileges and liabilities which police 5. to make recommendations to public officers have in connection with the authorities, investigation of such offences under the Prevention of Corruption Act, 1988. 6. The Investigating Officers of Lokpal authorized to investigate offences 4. The Lokpal may, before holding any under the Prevention of Corruption inquiry under this Act, by an order, Act 1988 shall have all the powers require the investigation officer of its which are vested in a Police Officer Investigation Wing to make, or cause to while investigating offences under the be made, a preliminary investigation in Code of Criminal Procedure, as well as such manner as it may direct and submit the powers conferred on the director a report to the Lokpal, within suchtime of enforcement under the Foreign as may be specified by the Lokpal, to Exchange Management Act, 1999 as enable it to satisfy itself as to whether or well as under the Prevention of Money not the matter requires to be inquired Laundering Act, 2002. into by the Lokpal. 7. The members of Lokpal or any officer 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 5 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 5. The investigation officer on receipt of an 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

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 the witnesses 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?

INVESTIG ATION AND PROSECUT ION AGAINST HIGH 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 any other 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 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. (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.

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 a coup?

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 or a 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 whatever name called) established by an Act of Parliament or wholly or partly financed by the Central Government or controlled by it: (3) any person who is or has been a 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 notification specify; (4) any person who is or has been a 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 Prime Minister, 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 of Parliament in respect of anything said or a vote given by him in Parliament 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.

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. (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 (2) In particular, and without prejudice to the generality of the power to the generality of the foregoing power, contained in sub-section (1) any such such regulations may provide for all or regulations may provide for all or any any of the following matters, namely: of the following matters, namely:(a) the conditions of service of the secretary and other officers and staff of any such regulations may provide for the Lokpal and the matters which in so all or any of the following matters, far as they relate to salaries, allowances, namely:leave or pensions, require the approval of the President under sub-section (2) of a) the creation of different wings in the section 11; Lokpal to deal with different subjects like investigation, prosecution and Every rule and every regulation made grievances; under this Act shall be laid, as soon as may be after it is made, before each b) the conferment of authority on House of Parliament, while it is in officers at different levels to exercise session, for a total period of thirty days powers under the Act and to lay down which may be comprised in one session the procedure for any inquiries or in two or more successive sessions, including those relating to complaints and if, before the expiry of the session against its officers or members of staff immediately following the session or the successive sessions aforesaid, both c) periods within which the Houses agree in making any investigations and inquiries modification in the rule or regulation, or both Houses agree that the rule or 3) The regulations framed by the regulation should not be made, the rule Lokpal under this Section shall be laid, or regulation shall thereafter have effect as soon as may be after they are issued only in such modified form or be of no or made, before each House of effect, as the case may be; so, however, Parliament. 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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