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