Critical and legal evaluation of Jan Lokpal Draft

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अमिताभStatement of objects and reasons in any Act is always high sounding and jlp does not seem short of that but this does not really mean much because what matters are the provisions and their implementability. It basically wants to claim that it is an attempt to establish an “independent authority” to investigate offences under pc act...

...by expeditious investigation, to prosecute offenders and to ensure timely redressal of certain types of public grievances etc. So far so good. All very grand looking but what is the reality? The real picture is that this proposed draft is full of so many loopholes, conjectures, assumptions, surmises, vague premises and lopsided thing.

I present them one by one-

1. Let us take the definition of  “grievance”. It is stated to mean a claim by a person that he could not get satisfactory redressal according to a citizens’ charter despite approaching a grievance redressal officer of that department. Citizen charter has been described in the chapter “Grievance redressal system” at section 25. But it is so vague and wide that nothing can be made out of it and very soon it will lose its meaning and will get diluted.

2. Similarly, it defines “whistleblower” as any person, who provides information about corruption in a public authority or is a witness or victim in that case or who faces the threat of professional harm, physical harm etc for making a complaint to the Lokpal  or for filing an RTI application. But what is meant by providing information against corruption, when will it be established that the information was a genuine one, who will establish and deduce it, all these questions are left open. How can it be said that a person is facing any harm are all matters of conjecture? No definition, no legal explanation, just sheer presumption. Not even the way of defining these words and the authority who finally establish them. No difference between a false complainant or a truthful one. No difference between a bad and cunning government servant proving to be a pain in the neck in the government by presenting all kinds of complaints and doing nothing on his own end.

3. About the much talked selection committee, it talks of a selection committee from out of a short list prepared by the search committee. The search committee shall consist of 10 members. 5 members will be SC judges, CEC, CAG etc. with “impeccable reputation of integrity”. Now, the question is who defines “impeccable reputation”? No law believes in reputation. What does reputation mean? How would integrity be defined? Who will be said to have impeccable reputation about integrity? Should governance be based on such arbitrary, vague and subjective words? My idea of a man of impeccable integrity might be in juxtaposition of yours and vice-versa. Things don’t end here. It also talks that these 5 members selected shall co-opt another 5 members from the Civil society in the search committee. No description about their selection criteria. Not even defined Civil society! Who are fit and who are unfit in this criteria? Who is less important a civil activist than other? These are areas that are fraught with great dangers and are completely unacceptable because they might lead to all kinds of confusion and possibly even nepotism.

4. Again, about candidates, it requires “only persons with impeccable integrity and record of public service particularly in the field of fighting corruption”. Who in India has not an impeccable integrity? Shall law be based on such vague words and vague propositions, that too when “impeccable integrity” is defined nowhere here. Again, who does not claim to be working for fighting corruption? I am yet to find a person in India who says he likes corruption or that he is not against corruption.

5. Then the process of selection and presentation of facts on website. Only yesterday Ms Arundhati Roy, in an article, blamed two of the primary workers of IAC of working for corporate interests and of getting huge foreign donations of unsavoury nature. Does that mean Mr Arvind Kejriwal and Mr Manish sisodia now quit the IAC and never claim membership of search committee? The moment 5 member team Anna was formed for drafting, a plethora of charges were volleyed against Sri Shanti Bhushan and his son. Why did they not quit the drafting committee membership? All these were very much on websites- so many websites!

6. What the above means is that all this bravado being painted is a confused, vague and hypothetical imagination where the only guiding principle is the sweet wishful thinking.

7. But the real trouble starts when we start talking about the work and function of these Lokpal. This includes to superintend and direct over the investigation of offences involving any act of corruption, to impose punishment of dismissal etc even after only the completion of investigation, to ensure that the public grievances covered by this act are redressed in a time bound manner, to initiate proper prosecution before a special court, to receive complaints from whistle blowers, to receive complaints against any officer or staff of Lokpal, to attach property and assets acquired by corrupt means and to confiscate them, to recommend cancellation or modification of a lease, license, permission, contract or agreement, if it was obtained by corrupt means, to ensure that the time limits mentioned in this act are strictly adhered to, to ensure the integrity of its functionaries, to inquire into the assets declaration statements filed by all successful candidates and so on. Thus virtually everything under the sun! Whatever these great architects could think of, they went on stuffing here. On, my god! So, now there shall be a new body of nearly a dozen dynamites (or supermen) who shall control everything in the country- every single complaint, every public grievance as per citizen charter, safety of every whistleblower and what not. This is not only crazy, this is the wildest and weirdest thought one could have ever thought. Today we have lakhs of government officers in India, all doing whatever they can. There are millions of government servants. But these few samurai, a with a hoard of new lokpal office men, will ensure that everything gets cleaned and cleansed. It does not seem proper to use a very strong word for such an imagination but nevertheless i would say that these people should have applied much restrain here.

8. Again, look at the various powers proposed to lokpal- to attach property and assets acquired by corrupt means and to confiscate them, to recommend cancellation or modification of a lease, to take disciplinary activity against an employee etc. Not only this, they will also be designated authority under section 5 of the Indian telegraph act empowered to approve interception and monitoring of messages of data or voice transmitted through telephones, internet etc.

9. Even the removal of the lokpal is described in an equal casual and non-serious manner. As per section 11, any lokpal can be removed from his office by the president, on the recommendation of the Supreme Court after it held an inquiry on the complaint of any person and found that he has been guilty of misbehavior. It is said that the Supreme Court shall make its recommendations within 3 months of receipt of complaint. What it tends to forget is that there can be any number of complaints coming against these lokpal because they are not fundamentally covered under the Contempt’s of courts act and hence many who would feel the lokpal is not listening to them might put in a complaint? Given the way the Supreme Court takes its job, with utmost seriousness and methodically, one can understand that soon it will become another non-operative provision, making a mockery of it. Though there is a fine or an imprisonment up to one year frivolous or malafide complaints, but as we all know, it is very-very difficult to prove either of these, conclusively. Again, this decision of Supreme Court will be subject to various Judicial reviews and hence a plethora of case laws.

10. Another such imaginative, hypothetical and non-realistic provision is about taking action against employees of lokpal. It claims to go for independent complaints authority. In each state, one or more complaints authority would be established by the lokpal to entertain any complaints against any officer or staff of the lokpal. Such complaints authority shall consist of 5 members. Thus, in each state five members to look after all the complaints! With all kinds of functions assigned to lokpal, only five members per state! Each of the government departments and subunits has hoards of complaint officers but each of them are overburdened with complaints and five members to look at all kinds of complaints in a state! Within a month or two, this will get chocked to its full capacity. Here again, look at the audacity of belief- “the complaints received against any officer or staff of the lokpal shall be inquired into by the complaints authority in a public hearing and shall be decided within 2 months of the receipt of the complaint.” These prepositions made one give a feeling that the people engaged in this drafting never had any exposure of public office.

11. Similar impunity can be seen chapter X on “Timely completion of investigation and trials for corruption” which says every investigating officer shall endeavour to complete the investigation of an offence within a period of 6 months but in any case the period of investigation shall not extend 18 months. Every effort will be made by the special courts to complete the trial within a maximum period of 12 months. All I can say here is- “if wishes were horses, beggars would fly.” I had so far heard politicians coming up with grand promises but this must be the first time, social activists resorted to this on such a large scale.

12. Similarly, the bill talks of an appellate grievance officer of lokpal. Thus there shall be at least one officer of the lokpal in each district to receive grievances who will be the officer based on whose “might and strength” the institution of lokpal will wipe away all the corruption, all the delay and everything! A penalty not exceeding Rs. 500/- per day to Rs 50,000 is prescribed for failure in grievance redressal but no modality regarding that fine is prescribed.

13. All through, the proposed draft is preconceived in its assumptions. It seems to believe that the moment a person falls in its net; he/she shall be hanged, even if the basic principles of natural justice are thrown away. It gives so many powers to the lokpal and its institution, all rolled in one. At the same time, it also wants to get away with section 389 (regarding suspension of sentence pending the appeal and release of appellant on bail) and section 397 (calling for records to exercise powers of revision) of the code of criminal procedure. Thus, right from the beginning, a complaint is believed to be true except against that of the so-called and self-described whistle-blower about whom it says in section 30 that lokpal may impose fine up to Rs one lakh. But is makes it mandatory that no fine can be imposed without giving a reasonable opportunity of being heard to the complainant and also not merely because a case could not be proved.

Somehow, this sense of wisdom seems to be completely absent against the accused. Thus what this will result in that there might evolve many set of government servants playing with this act for their own personal gains and thus ruining things. Such provisions, when applied so lightly, non-seriously, non-legally and hurriedly, will prove to be a permanent bane for Indian governance.

Summing it up, the Jan Lok Pal has all the faults that a hurried, one-sided and preconceived legal draft can have.

Amitabh

an IPS officer from UP

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