Re: [HumJanenge] Topnotch bureaucracy kept outside the ken of Lokpal and Lokayukta

Dear Col Israel,

As regards the suggestion for bringing all constitutional authorities like President, Governor, Speaker, C&AG etc within the ambit investigative ambit of Lokpal, it is no doubt worth arguing for. There is no logic as to why such authorities would be provided with immunity from investigation or prosecution by Lokpal. However, this provision is missing from the latest version of Jan Lokpal Bill too. There is an imperative need for initiating a strong debate around this suggestion and for bringing about a consensus in its favour among the civil society groups, first of all. Otherwise, the mood of Parliamentarians is so strongly biased in favour of such constitutional authorities that they would shout it down the moment it is uttered inside or outside the Parliament. 

As regards the issue of inordinate delay the courts commit in disposing the cases, the Government proposed Lokpal and Lokayukta Bill provides for certain time limit within which the Special Court shall decide the cases of corruption submitted by Lokpal. The Section 35 (2) of the Bill says, "The Special Courts constituted under sub-section (1) shall ensure completion of each trial within a period of one year from the date of filing of the case in the Court: Provided that in case the trial cannot be completed within a period of one year, the Special Court shall record reasons therefor and complete the trial within a further period of not more than three months or such further periods not exceeding three months each, for reasons to be recorded in writing before the end of each such three month period, but not exceeding a total period of two years". Thus a case of corruption shall be normally disposed of within one year, and at maximum within a period two years from the date of filing of the case.

As regards the anxiety as to how a 9-member body of Lokpal shall be able to hear and dispose of millions of cases without the aid of at least 2 million inspectors, we need to understand that Lokpal shall have as its arms of investigation existing bodies such as CVC, CBI, State Vigilances along with its own enquiry and prosecution wings. Lokpal may start working with such existing infrastructure and manpower. Let the experience of its working be gathered first, based upon which we shall can come to know the further requirements. As a matter of fact, once Lokpal starts booking the corrupt guys placed at different levels of our polity, it shall send a wave of fear among all gullible babus across the system, and thereby drastically reduce the number of officials going for corruption. This angle we ought to keep in mind while hypothesizing about the huge numbers of cases becoming unmanageable for a slender 9-member body of Lokpal.

Chitta Behera

1 Jan 2012

---

From: Sarbajit Roy <sroy.mb@gmail.com>
To: humjanenge@googlegroups.com
Sent: Sunday, 1 January 2012 3:34 PM
Subject: Re: [HumJanenge] Topnotch bureaucracy kept outside the ken of Lokpal and Lokayukta

Dear Col Jayakaran

Your analysis is almost perfect. Actually it is the MOST stupid law
conceived - which is not surprising considering that it has been
drafted // proposed by a sepoy who relies on an army of parasites to
explain the law to him.

More signal less noise ;-)

Sarbajit

On 1/1/12, Israel Jayakaran <israel@jayakaran.com> wrote:
> Dear Chitta,
>
>        Possibly my  understanding is below par. I feel the LOk Pal bill is
> the most stupidest bill one could  come across. As I said, I  might be wrong
> in my grasp.
>
>        According to me, the Lok pal should be a person who is free to
> investigate corruption charges in any quarters  including Rashtrapathi
> Bhawan.  So, I don't understand why some personalities are kept outside the
> ambit of LP.  Does it mean they can indulge in corrupt pracitces and no one
> can touch them ! It seems to be an open cheque case for them.
>
>        Next, the LP is only an investigating and  prosecuting agency.
> Would he file the case in any court of law for disposal? That will be the
> doom.  Courts may take 10 - 15 years.  Our courts are notorious for speed.
>
>        Next, there are millions of cases of corruption/malpractices in the
> land.  How could the LP body of nine members deal with this volume? In my
> opinion the LP  would  need around  2 million inspectors for investigation.
>
>        Could you correct me where I am wrong in my reading of the bill.
>
>        Thank you,
>
>                                      Israel Jayakaran, Colonel (Retd),
> Signals, Chennai.
>
>  Original Message -----
>  From: Chitta Behera
>  To: undisclosed recipients:
>  Sent: Saturday, December 31, 2011 11:43 PM
>  Subject: [HumJanenge] Topnotch bureaucracy kept outside the ken of Lokpal
> and Lokayukta
>
>
>  Topnotch bureaucracy kept outside the ken of Lokpal and Lokayukta
>  (A critical lapse in recent Lokpal discourse in Indian Parliament)
>
>
>  Now that the noise around Lokpal and Lokayukta Bill 2011 in both houses of
> Parliament has cooled off, it deserves of every watchful citizen, whosoever
> wish to see an effective anti-corruption law emerge at the end of the day,
> to go for a quick recap of what in fact went by during the eventful days of
> 27 to 29 December in Delhi's chilly winter. Numerous people like this
> author, who otherwise couldn't afford the luxury of sitting glued to TV
> Screens almost 24X7, were however self-urged to do that very thing during
> those 3 days. Doubtless it speaks volumes of the phenomenal heat that Anna
> movement generated all over, embracing its supporters and detractors alike.
> What a spectacle! At one end, a sick but spirited Anna was found fasting on
> MMRD Ground at Mumbai demanding a strong Lokpal law and at the other, some
> hundreds of agitated but cunning MPs joining over the issue in an extended
> duration of Parliament's winter session at Delhi, both obviously forsaking
> the X-mass festivity. One thing came out in bold relief, much to the glory
> of our democracy that if and when the members of public, who are the real
> but invisible masters, would ever want their army of servants including the
> Members of Parliament to comply with any of their strong wishes, the latter
> shall perforce and willy-nilly attend to the same, even working overtime.
>
>  However, the moot point arises- did the Parliamentarians accomplish the
> task they had taken on their reluctant shoulders, albeit under the duress of
> a strident public opinion? The overwhelming response to this all-important
> question is a negative one, especially going by the fact that the two major
> players, Congress representing the Government and BJP the opposition,
> instead of doing necessary introspection, have started trading charges
> against each other for 'choreographing' the Bill's failure to come through
> in the winter session. Be that as it may, this failure seems to be a
> blessing in disguise, in the sense that not only Team Anna but also the MPs
> belonging to every warring camp would now avail the much needed breathing
> space to scan in the cool of their study the multifarious and complicated
> provisions laid down in a barrage of voluminous Bills, all packaged
> alongside of the Lokpal and Lokayukta Bill, such as the ones on Whistle
> Blowers Protection, Citizens Grievance Redress and Judicial Standards and
> Accountability.
>
>  As revealed from Rajya Sabha debates, all parties except Congress the
> mover of the Bill fought it tooth and nail on several grounds, and a couple
> of such grounds around which there prevailed a near unanimity among the
> opposition were (1) the constitution of Lokayukta in States to be left to
> the discretion of the States themselves, and (2) freedom of CBI from
> Governmental control. While their position on Lokayukta nakedly went against
> the Sense of House Resolution of 27 August to which they were as much
> parties as the Congress was, the other position maintained by them was
> apparently a well-intentioned one and resonated with what Team Anna in fact
> used to thrust on. But question arises, assuming that the CBI is freed from
> governmental control and even brought under the administrative control of
> Lokpal, shall this dispensation render the latter as much a powerful body as
> it deserves to be?
>
>  Answer to this crucial poser is sadly an emphatic no. What shall the
> Lokpal do with CBI kept at its beck and call, if it has no power at all to
> enquire, investigate or prosecute the Officers of All India Services like
> IAS, IPS and IFS? And that is exactly what transpires from a plain reading
> of the sub-section (4) under Section 23 of the Bill. Section 23 captioned as
> 'Previous sanction not necessary for investigation and initiating
> prosecution by Lokpal in certain cases' has a total of 4 sub-sections, out
> of which the first two are enabling or so to say, empowering provisions for
> Lokpal, while the remaining two are limiting or so to say disempowering
> ones. The sub-section (1) does away with any previous sanction or approval
> from any authority that may be required under Section 197 of CrPC 1973 or
> Section 6A of DSPE Act 1946 or Section 19 of PoC Act 1988 for the Lokpal
> before conducting a preliminary inquiry into a complaint of corruption
> involving a public servant, or before filing of any charge-sheet or closure
> report on completion of investigation before the Special Court. At tandem
> with the above the sub-section (2) allows a Special Court, after the
> charge-sheet is filed, to take cognizance of offence committed by any public
> servant irrespective of anything contained in Section 197 of CrPC 1973 or
> Section 19 of PoC Act 1988. Then, the ensuing couple of sub-sections do
> prescribe exceptions to the above mentioned powers of Lokpal in respect of
> investigation and prosecution of public servants accused of corruption.
>
>  The first exception laid down in sub-section (3) excludes those
> authorities from the ambit of Lokpal who hold constitutional offices and in
> respect of whom a procedure for removal has been specified in the
> constitution itself. Such constitutional authorities are, for instance
> President, Vice-President, Governor, Chief Justices and Judges of Supreme
> Court and High Courts, Speakers and C&AG to name a few. But the next
> exception laid down in sub-section (4) is a very alarming one in view of the
> fact that it exempts the entire class of topnotch bureaucrats from any
> liability to investigation or prosecution by Lokpal even if serious
> allegations of corruption are advanced against them. The sub-section (4)
> says, "The provisions contained in sub-sections (1), (2) and (3) shall be
> without prejudice to the generality of the provisions contained in Article
> 311 and sub-clause (c) of clause (3) of Article 320 of the Constitution".
>
>  As a matter of fact, Article 311 of Constitution, by way of prescribing
> complicated procedures for enquiry, investigation or prosecution, provides a
> large measure of immunity to the members of civil services of the Union and
> States and All India Services from imposition of penalties against their
> acts of corruption. "The constitutional safeguards have in practice acted to
> shield the guilty against the swift and certain punishment for abuse of
> public office for private gain. A major corollary has been erosion of
> accountability. It has accordingly become necessary to revisit the issue of
> constitutional safeguards under article 311 to ensure that the honest and
> efficient officials are given the requisite protection but the dishonest are
> not allowed to prosper in office." (vide Para 6.7.4 Report of the National
> Commission to Review the Working of the Constitution, 2002). The article 311
> being thus the escape route for the corrupt civil servants, the observation
> of its mandate as underlined in Section 23(4) of the Bill would simply but
> surely limit Lokpal's jurisdiction to nab such elements.
>
>  A superficial reading of sub-clauses (e) and (f) of Section 14(1) of the
> Bill, which together refers to Groups A, B, C and D officers of Union, has
> misled many to a general impression that the present Bill brings all
> categories of civil servants of the Union within the ambit of Lokpal without
> exception. However, we need to remember that the members of All India
> Services such as IAS, IPS and IFS stand exempted outside of the aforesaid 4
> categories of employees covered under Central Civil Services. In fact, the
> chief instrument which has delineated group-wise classification of Central
> Civil Service employees into A, B, C and D Groups is the Central Civil
> Services (Classification, Control and Appeal) Rules, 1965, and the latter in
> its Rule-3 (Application) stipulates inter alia that it won't apply to 'any
> member of the All India Services.' In fact, the members of All India
> Services are regulated by altogether separate instruments in force, such as
> All India Services Act 1951 and All India Services (Conduct) Rules, 1968.
> Coming back to Section 23(4) of the Bill, we notice that even if we, going
> by the sub-clauses (e) and (f) its Section 14(1) allow for the coverage of
> civil services of the Union and States as referred under Article-311, to be
> brought under the investigating and prosecuting ambit of Lokpal, the case of
> All India Services is still left out there-from.
>
>  Further, the Bill in its Part-III (Lokayukta for a State) just in the
> manner of already referred Section 23(4) does also provide for protection to
> the civil servants including officers of All India Services from the
> jurisdiction of Lokayukta. The Section 84(4) occurring in Bill's Chapter-VII
> (Procedure in respect of Preliminary Enquiry and Investigation) brings out
> the exemption thus, "The provisions contained in sub-sections (1), (2) and
> (3) shall be without prejudice to the generality of the provisions contained
> in article 311 and sub-clause (c) of clause (3) of article 320 of the
> Constitution".
>
>  Now that the real implications of a scrappy reference to Article 311 of
> Constitution occurring in the contexts of both Lokpal and Lokayukta have
> been laid bare, the other matter referred therein i.e. Article 320 (3)(c )
> needs to be decoded of its real import too. It mandates that the Union
> Public Service Commission or the State Public Service Commission, as the
> case may be, shall be consulted "on all disciplinary matters affecting a
> person serving under the Government of India or the Government of a State in
> a civil capacity, including memorials or petitions relating to such
> matters". It simply means that the Lokpal at Centre or the Lokayukta in a
> State can't advise the concerned public authority on the type of
> disciplinary action to be taken against a corrupt civil servant of Centre or
> State without having a consultation with the concerned UPSC or SPSU. Since
> the Bill doesn't mention any time-limit within which the Commissions shall
> tender their views in the matter, the task of prosecuting the guilty civil
> servant by the Lokpal or Lokayukta may hang fire to no end, as witnessed
> ever in the past.
>
>  It is ironical that with everybody from Team Anna to Parliament getting
> frenzied around 'lower bureaucracy', the shrewdly drafted official Bill
> shielded the topnotch bureaucracy from the ken of anti-corruption ombudsman
> altogether. So much so that you may now get a deviant sweeper punished
> through the route of CVC though, but you can't get a complaint against a
> corrupt Secretary or Commissioner enquired into by Lokpal or Lokayukta.
>
>  Chitta Behera, 4A Jubilee Tower, Choudhury Bazar, Cuttack-9, Mobile-
> 9437577546, dt 31.122.2011