Lokpal: Ombudsman or Omnipotent Overlord
by Sandhya Jain on 30 Aug 2011 13 Comments

There is startling synchronicity between Amethi MP Rahul Gandhi’s speech on the Lokpal issue in the Lok Sabha on Friday and the draft of the Jan Lokpal bill. This lends weight to suspicions that one objective of the Ramlila Maidan blitz is to destabilise Prime Minister Manmohan Singh and elevate Mr Rahul Gandhi to the office.


Mr Gandhi advocated that the Lokpal be made a statutory institution like the Election Commission. The Jan Lokpal positions itself as a statutory body with draconian powers over all organs of State, with zero checks and balances.


Some points deserve mention. Team Anna is curiously willing to allow the septuagenarian to continue his fast. Once government said that ending the fast was the responsibility of Anna’s associates, the latter strangely opted to continue the fast, and the ‘failing’ leader stabilized his health and stamina. One wonders if the refusal to allow government doctors to examine Anna, as mandated by the Supreme Court, has anything to do with this.


Corruption is as destructive of nation and society as terrorism. But for an effective response, the nation perhaps needs a policy of no negotiation with blackmailers, as with terrorists. This would give government and legislators the freedom to study the anti-corruption issue seriously and enact just laws. Given the shrillness of Media and NGOs on the issue, both must come under the ambit of the proposed law.


As for the Jan Lokpal Bill 2011, it decimates all normal courts and police stations in the country as the Lokpal assumes powers to “detect corruption by expeditious investigation and to prosecute offenders”. Indeed, Lokpal elevates itself into a dangerous supra-government.


Corruption, under this draft, is defined as anything punishable under Chapter IX of the Indian Penal Code or Prevention of Corruption Act, 1988; including any offence committed by an elected member of a legislature even in respect of his speech or vote inside the House. This is an assault upon Parliament and democracy; little wonder all political parties have reservations regarding the draft and the motives of those pushing it. In fact, the Supreme Court should suo moto opine whether this perverts a basic feature of the Constitution.


The Jan Lokpal also wants the right to inquire into the assets declarations filed by successful candidates after election to any House of Parliament. (This would extend to States once they pass similar legislations).


The proposed 11-member Lokpal would have administrative, financial and functional independence from government; at least four members would have a legal background. These would be selected (the nepotism of the elite) by a Selection Committee headed by the Prime Minister. But the Selection Committee would have to select members from a panel prepared by a Search Committee, the chairperson of which shall be a person with extensive knowledge of law. Lokpal, it seems, is conceived as a paradise of crusading lawyers, who would likely get lucrative assignments from the said body.


The 10-member Search Committee shall be appointed by the Selection Committee (nepotism) from amongst retired Chief Justices of India, retired Chief Election Commissioners and retired Comptrollers & Auditor Generals with impeccable reputations. They shall by consensus co-opt five members from Civil Society (nepotism) into the Search Committee. The Search Committee shall invite nominations from such eminent individuals or persons it deems fit (a closed circle; selection by nomination only).


Lokpal members will have a 5-year tenure but can hold office till the age of 70 years; this raises suspicions that the draft sponsors have specific individuals in mind for the posts, and hence the haste in pushing the issue. The draft mentions removal of a Lokpal, but there is no Right to Recall a Lokpal who dissatisfies the public.


Anna Hazare’s draft bestows upon the Chairperson and Members of the Lokpal a salary equal to that of the Chief Justice of India and judge of the Supreme Court respectively, along with allowances, pensions and other conditions of service. The Secretary to the Lokpal will have the rank of Secretary to the Government of India. All expenses of the Lokpal are to be fully charged to the Consolidated Fund of India, with no government say in the matter.


The question arises, why shouldn’t the Lokpals be appointed by the Union Public Service Commission and subjected to the same rules and service conditions as regular government servants? After all, they want pensions after 5 years of service.


A major danger comes from Lokpal positioning itself above the Indian economy, a situation which can favour Multinational Corporations seeking to keep ministers, officials, and judges in line. None of the moral crusaders at Ramlila Maidan has spoken against the gargantuan corruption in Commonwealth Games’ contracts, but Lokpal wants the right “to recommend cancellation or modification of a lease, license, permission, contract or agreement, it if was obtained by corrupt means and to recommend blacklisting of a firm, company, contractor or any other person involved in an act of corruption.”


One column cannot list the glaring defects in the draft. It wants its investigating officers to enjoy all powers vested in a police officer investigating offences under the Cr.P.C. and on the Director of Enforcement under the Foreign Exchange Management Act, 1999 and Prevention of Money Laundering Act, 2002. It will have the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, which are truly mind-boggling.


Above all, it wants the power to intercept telephones, internet, and any other forms of communication. The punitive powers are staggering – jail terms up to life imprisonment; fines recoverable as arrears of land revenue (public auction of property); right to deduct fines from salaries of non-conforming government servants; right to appoint George Orwell-style Big Brothers in every district, and confiscate assets and properties deemed to be acquired by corrupt acts, including parental properties.


This fascist bill is a recipe for simultaneous paralysis and hyperactivity in all government departments. No minister or officer will take a decision that could bring a motivated Lokpal enquiry; officials will gang up against officers who incur Lokpal anger to save their own skins and salaries; while deals favoured by one or 10 Little Emperors will have smooth passage. No wonder there is no Right to Recall and no clear procedure for removing a corrupt Lokpal. Indeed, the draft does not even envisage the possibility of a corrupt Lokpal.


The author is Editor. www.vijayvaani.com
This article was written as per The Pioneer deadline, prior to the special session of Parliament 
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