[rti4empowerment] NCPRI puts five draft notes on Lokpal

Forwarded by Bhaskar Prabhu

Mahiti Adhikar Manch

Civil Society News
New Delhi

The Anna Hazare group has hogged the headlines with its draft Jan Lokpal Bill, but a low-key process by the National Campaign for People's Right to Information (NCPRI) has yielded proposals in the form of five draft concept notes which could,with further discussion, become the basis for a draft law.

The NCPRI draws on experience and its proposals emerge from discussions in which contrary views are frequently expressed. It includes groups like the Mazdoor Kisan Shakti Sangathan, (MKSS), which work at the grassroots and have valuable insights into the functioning of institutions at ground level.

If the NCPRI has come to be seen as being slower than the Hazare group, it is because it approaches the creation of a draft law as a complex process.

The NCPRI's discussions on the Lokpal have included Justice A.P. Shah, Sailesh Gandhi, Usha Ramanathan, Annie Raja, Harsh Mander, Pratyush Sinha, Amitabh Mukhopadhyay, Aruna Roy, Shekhar Singh and Nikhil Dey among others. There have been conversations with Justice J.S. Verma, though he hasn't been formally involved.

While the Hazare group has proposed an all-powerful Lokpal/Lokayukta structure, the NCPRI has suggested a basket of measures which will tackle corruption in all its forms at various levels.

This is important since corruption has many manifestations. At the top it is secretive, complex and requires sophisticated investigation. At the grassroots, corruption is an open secret.

In NCPRI discussions, caution has been expressed against creating institutions outside the democratic process. The Indian Constitution delicately balances power between the executive, the legislature and the judiciary. The general view in the NCPRI has been that the basic framework of the Constitution should not be challenged.

There has been concern over concentrating too much power in a single institution. It may be too much to expect a Lokpal to tackle complaints against the Prime Minister, senior judges and MPs at the top as well as officials like junior engineers and block development officers at the bottom. The Union government alone employs some four million people.

"The Lokpal should not collapse under its own weight," Aruna Roy of the MKSS said at a two-day consultation held at the Teen Murti Library in Delhi in July.

It has also been felt that it is better to strengthen dysfunctional institutions by addressing their weaknesses and create new ones only wherever necessary. There is no point in replicating bad examples.

"We need to strengthen existing democratic institutions and not bypass them. We have laws. We need to implement old laws even as we draw up new ones," said Shekhar Singh.

So, instead of one mighty Lokpal, the NCPRI has proposed institutions at different levels. These are:

• A Central Lokpal Anti-Corruption Commission to deal with corruption in high places. It would cover the Prime Minister, MPs, Class A officers. At state level, a Lokayukta Commission would cover the Chief Ministers, MLAs etc.
• A strengthened Central Vigilance Commission (CVC) to deal with the bureaucracy below Class A officers.
• A Grievance Redressal Commission (GRC) to register and resolve everyday complaints which ordinary citizens have against their local administrations.
• A Judicial Accountability and Standards law to tackle complaints against judges and improve the functioning of the judiciary.
• A law for the protection of whistleblowers who are key to the uncovering of corruption.

The debate over the Lokpal has thrown up differences among activist groups on certain key points. The NCPRI's view on these points is as follows:

PRIME MINISTER: The NCPRI recommends that the Prime Minister should come under the Lokpal but with checks and balances. The PM cannot be questioned on decisions he has taken on security and defence. Investigations against the PM can only begin only if a full bench of the Lokpal recommends it and a full bench of the Supreme Court examines the evidence and agrees. To prevent the PM from becoming a 'lame duck', the draft bill says the PM will not be held responsible for decisions taken by other ministers in his government, and before starting such an investigation, a notice will need to be served to the ruling party.

INVESTIGATIVE POWERS: NCPRI members agreed the Lokpal should have the power to investigate and prosecute. But they suggested splitting the two functions for achieving greater balance and good sense. It was also proposed that the Prevention of Corruption Act be modified to cover companies as co accused.

The NCPRI also proposes a search committee to find people with good reputations to be on the Lokpal bench. The Lokpal should have financial and functional autonomy. A two- year deadline for all trials was not seen as a practical idea. Penalties for frivolous complaints has been opposed. Only those with malafide intention should be penalised.

Central Vigilance Commission: With Group A officers coming under the Lokpal, the CVC could investigate complaints and grievances against Group B and other officials. A list can be worked out. The CVC currently receives nearly 15,000 complaints a year and investigates hardly any. But people are familiar with it. NCPRI recommends removing the 'single directive' by which the CVC has to seek the permission of the Union government before investigating an officer of the level of joint secretary and above.

The NCPRI is discussing two models for the CVC:

First, the CVC could be hived off as a separate investigative department with its own cadre. So Vigilance Officers (VOs) would report to the Chief Vigilance Officer (CVO) in the CVC. Currently VOs are appointed by their respective departments and are 'nameless and faceless.' The VO would be able to initiate investigation in the department if required and be answerable to the CVO.

The second model is to make the secretary of the department responsible for delays or inefficiencies in investigation. So the VO would report to the secretary. If the complainant is unhappy with the VO and the secretary, he can approach the CVC. NCPRI members felt the advantage with this model is that the autonomy of the department would remain and the secretary would be made accountable.

Prasanta Sen, a lawyer, said VOs should get security of tenure in the department so that they can pick up nuances and get specialisation in that area. Another suggestion was to draw up Standard Operating Procedures. Smooth processes were found to be very useful in investigation and for speeding things up.

Complaints against the CVC should go to the Lokpal and be investigated before being referred to the Supreme Court. The responsibility of finding candidates for the CVC would be entrusted to the Lokpal through a search committee.

GRIEVANCES: The Lokshikayat Grievance Redress Commission proposed by the NCPRI would tackle day-to-day grievances and make every government department accountable and efficient. It was pointed out a healthy trend was already underway. Some states have made 'time-bound services' mandatory.

Every department would have to clearly inform people about the services or goods it is providing, how these can be accessed, who is eligible and who will be responsible for delivering those services. The quality of the department can be assessed by its output. Every public authority will have a Grievance Redressal Officer (GRO) for receiving and disposing of complaints within a specified time line.

At block level, a facilitation centre is proposed which will tell villages about the government's schemes and entitlements. It will file complaints and send them to the GRO. The centres would come under the Lokshikayat Grievance Redressal Commission. Computerisation would be necessary for tracking complaints and entitlements. The commission can, from time to time, order social audits and assess how departments at the grassroots are functioning with people's participation.

Grievances would not just include ration cards and entitlements. If laws at the grassroots such as the Forest Rights Act were not being properly implemented, then that too would constitute a grievance, explained a member.

JUDICIARY: The most complex reform appears to be with regard to the judiciary.

The NCPRI suggests retaining the independence of the judiciary but seeks to make it accountable by strengthening the weak Judicial Standards and Accountability Bill, tabled in Parliament in December 2010.

The bill lays down standards of behaviour for judges of the Supreme Court and High Court. It establishes a mechanism for receiving and investigating complaints and a procedure for impeaching a judge. The bill proposes setting up a National Judicial Oversight Committee to deal with complaints against judges.

The NCPRI would like the National Judicial Oversight Committee to be strengthened. As per the government draft, the Oversight Committee has been crowded with members from the judiciary which makes it look like a charmed circle. The NCPRI recommends instead that members of the Oversight Committee be chosen through a collegium system, include two non-judicial members and be chaired by the Vice-President of India.

The NCPRI proposes making the Oversight Committee a permanent body. All serving judges on the committee should work full-time. The committee will come up with its own procedures. It will appoint an Investigation Committee with at least two serving members of its own committee, if a judge has to be investigated. Also, the Oversight Committee will define what exactly is meant by 'misbehaviour' by judges – technically even Parliament isn't empowered to define that.

The NCPRI has suggested that scrutiny of complaints against judges should be done in camera. The outcome of a complaint may not be serious enough to require a judge to be removed. Advisories and warnings can also be used as punishments.

Members also said that former judges of the Supreme Court should be prohibited from giving opinions or seeking arbitration except if the President or governor seeks it in the national or public interest.

A young lawyer from Bhopal pleaded that this new bill be used to improve the functioning of the judiciary and set higher standards. Corruption is not the only issue. At district level the judiciary was a complete mess with judges traipsing in and out of the court as and how they pleased. People sold their assets in an elusive search for justice. The quality of judgements and orders passed was pathetic.

"Let us use this opportunity to clean up the rot in the judiciary," he said. "Otherwise you may end up with a clean and hopelessly inefficient judiciary."

He recommended splitting the Judicial Standards and Accountability Bill into two: so a Judicial Standards Bill would ensure the judiciary improved its services and a Judicial Accountability Bill would make sure judges were not corrupt.