THE LAWFILE

Posts Tagged ‘Central Bureau of Investigation

Politicians’ wealth

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A.G.Noorani in DAWN

THE people have every right to know the financial resources of persons in public life and how they came to acquire their wealth. India’s Prevention of Corruption Act 1988 makes it a criminal offence for a “public servant” to be in possession of “pecuniary resources or property disproportionate to his known sources of income”.

Once this fact is established, the onus shifts on the suspect to “satisfactorily account” for his wealth. The Act applies not only to ministers, civil servants, judges and persons in state-funded institutions, but also to “any person who holds an office by virtue of which he is authorised or required to perform any public duty”. That includes MPs and MLAs. The minimum sentence for the offence, called “criminal misconduct”, is one year; the maximum is seven years. No limit is prescribed for the fine that may be imposed. It can run up to crores. The Act, unfortunately, does not provide for confiscation of property.

In the 1960s, C. Rajagopalachari, India’s first Indian governor-general, dubbed politicians as gentlemen without any ostensible means of livelihood who are liable to be rounded up by any magistrate on a charge of vagrancy. Right now, the Indian politician’s standing in public esteem is pretty low.

On July 12, in Hyderabad, the Andhra Pradesh High Court ordered the Central Bureau of Investigation to conduct a preliminary inquiry into allegations of possession of “disproportionate assets” — the media’s shorthand for the definition in the Act — and dubious business deals against India’s richest MP, Jagan Mohan Reddy. He is son of Y.S.R. Reddy, the state’s powerful chief minister, who died in a helicopter crash. He did not enjoy an enviable reputation.

The case was initiated through a mere letter to the high court by a state minister. He alleged that the MP had amassed enormous wealth by misuse of power when his father was chief minister during 2004-9. The 38-year-old Jagan Mohan has declared assets worth Rs365.68 crores.

A former chief minister of Haryana, Om Prakash Chautala, is facing prosecution in a “disproportionate assets” case, in company with two sons, both MLAs. So is the present chief minister of Tamil Nadu, J. Jayalalithaa.

All MPs and MLAs are required by law to disclose, by affidavit on oath, at the time of filing their nomination papers for elections, information on four points; namely, their educational qualifications, past convictions or acquittals in a criminal case, any pending case in which the court has taken cognisance and his assets and liabilities as well of those of the spouse.

This requirement was imposed on May 2, 2002 by the Supreme Court of India on a petition filed by an Association for Democratic Reforms. There has been no comprehensive reform of election law since 1966. Shamed by the court order, parliament amended the law to give legislative sanction to those requirements imposed by the Supreme Court.

Legislation is necessary but no law can cure political malaise. In 2004, the electorate voted to the Lok Sabha (lower House of Parliament) of 542 members as many as 100 MPs who had been charge-sheeted in criminal cases. Some had been charged with rape, murder and dacoity. Last May, 825 MLAs were elected to the legislative assemblies of four states which went to the polls. The total self-declared value of their assets was Rs2,128 crore — 231 of them were into their second term. They had increased their assets by 169 per cent, on an average, between 2006 and 2011. Whether the increase was due to business acumen of sheer genius or less worthy skills is something they alone can explain. But no one has demanded that they all be asked to explain.

Two questions arise. Of what avail the disclosures, if the people voted for known criminals or the notoriously corrupt?

Secondly, must not the law follow up on the disclosures? The framing of charges against a person must itself be made a disqualification. As for the corrupt, surely a “disproportionate assets” case can be slapped on every legislator who, on his own disclosures, amassed wealth after his election. The onus of proving innocence then shifts on him.

This proves the wisdom of Dr B.R. Ambedkar’s words in the constituent assembly on Dec 31, 1948. As chairman of the drafting committee, he replied to a suggestion that disclosure of assets be made a constitutional obligation. He pointed out that there must be provision for a prosecution after the second disclosure arouses suspicion. That was done in 2002. But the situation has not improved, since the law enforcement is pathetic.

Evidently political parties need the corrupt to provide the moneys and criminals for use as strong men. The only effective check is exposure by the media; relentless and documented.

We need books of the like of The Triumph of the Political Class by Peter Oborne. He describes how “the political class” cutting across the parties, unites to enrich itself, pillage the state and claim special privileges. “MPs seem to think that their status demands special treatment at airports upgrades on flights, advantageous treatment, from commercial firms, while allowing them to display uncalled for rudeness to ordinary people.”

Financial disclosures only reveal the tip of the hideous iceberg; but enough to warn that the polity suffers from a malaise and the special privileges of the ‘political class’ must be removed.

Laws and courts can help only up to a point. The only effective cure is popular awareness and — self-assertion. It is an awesome responsibility on the media.

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BJP: illogical, unconstitutional

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Keeping the Prime Minister out of the purview of the proposed Lokpal Bill is “illogical” and even “unconstitutional,” Leader of the Opposition in the Lok Sabha Sushma Swaraj said here on Thursday as she explained why the Bharatiya Janata Party had opposed the measure at the introduction stage itself. Ms. Swaraj said she was allowed to place her objections in the Lok Sabha, although normally a member could, at the introduction stage, question only the legislative competence of the House to pass the proposed legislation, which was not the case now.

The Constitution gave no person holding any office immunity from criminal prosecution and the BJP’s objection is that the Bill giving the Prime Minister immunity is “constitutionally invalid.” The existing penal laws and the Prevention of Corruption Act of 1988 also do not exclude action against the Prime Minister. It is therefore “illogical” to keep him out of the purview of the proposed legislation, argued Ms. Swaraj and her counterpart in the Rajya Sabha, Arun Jaitley. Although the National Democratic Alliance government between 1998 and 2004 did not get a Lokpal Bill passed, Ms. Swaraj said the party’s stand had been consistent for, the draft legislation of 2001 included the Prime Minister. “We have been consistent. It is the Congress which has changed its stance as Pranab Mukherjee, as chairman of the standing committee that looked at the Bill then, favoured inclusion of the Prime Minister.”

EQUALITY

Mr. Jaitley said the exclusion of the Prime Minister violated the constitutional guarantee of equality before law; two, the Lokpal Bill would come out with a procedure for looking at corruption in high places and any punishment would be decided on the basis of the Prevention of Corruption Act which did not give the Prime Minister any immunity and three, normally any corruption case against a Prime Minister would involve charges against one or more Ministers and bureaucrats who would be involved in a conspiracy to defraud the state. The law should not separate the individuals in a conspiracy and deal with them differently.

In response to questions, Ms. Swaraj clarified that her party had no objection to granting exemption to the Prime Minister in issues and decisions involving national security.

JUDICIAL COMMISSION

Asked why the BJP was not insisting on the higher judiciary also being covered by the Lokpal Bill on the same principle of constitutional guarantee of equality, Mr. Jaitley said the party favoured a separate national judicial commission for this purpose as that would ensure “separation” of the executive and the judiciary. As an executive-dominated committee would select a Lokpal, it would not be correct to bring the judiciary under that institution. In this context, he said an “alternative” must be found to “the current system of judges appointing judges and judges punishing judges” for, that had simply not worked.

Ms. Swaraj and Mr. Jaitley said the BJP would present its view forcefully before the standing committee when the Bill was discussed. When the Prime Minister could be investigated by the ordinary police or the Central Bureau of Investigation, it was “illogical” to keep him/her out of the purview of the Lokpal, they said.

Two faces of Lokpal, Lokayukta Mother India

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santosh hegde, former lokayukta of karnataka, ...

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Editorial in the Shanghai Express

A toast is well deserved. Retired Judge of the Supreme Court of India, Justice Santosh Hegde is certainly the man of the hour, courtesy the effective enforcement of the clau- ses contained in the Lokayukta in Karnataka.

However before the toast is raised, before the congratulatory notes start pouring in, it would be worthwhile to take certain things into consideration, study them and digest them. Largest democracy in the world.

Island of democracy in a sea of Nations where democracy has more often failed than succeeded, one of the few developing Nations (when this term was politically acceptable in 1947) where the rule of the ballot has never been disrupted by spells of military rule and the largest democracy in the world.

These are some of the epithets that sit pretty comfortably in the crown of Mother India and to top these is the reputation earned in the last decade or so as one of the fastest emerging economic powers in the world. So as Karnataka Chief Minister Yeddyurappa faces the heat in the face of the damning indictment issued by the Lokayukta of the State headed by Justice Santosh Hegde, this should be the ideal time to ponder over some uncomfortable questions.

As a Parliamentary democracy, India rightfully believes that the ballot or the EVMs are the final arbiter of the performance of a Government or more specifically a political party. This means that every five years a sort of a referendum on the performance, governance, character etc of a Government or a political party and at the micro level a politician is held and the verdict of the people is supposed to reflect the points we have just mentioned.

This has been the case ever since India attained independence more than 60 years back yet the five yearly elections have never been able to address certain questions and to this day this failure is reflected in the atrocious positions of women in society, the fate of the girl child, the caste structure which has mutated to caste based politics and probably the most niggling of them all- institutionalisation of corruption.

This is the reason why the word of caution against raising the toast was issued in the first place. In many ways the growing need of Bills or Acts like Lokpal at the Centre and Lokayukta at the States is a damning testimony that the mechanisms of power available to the people through the universal adult franchise have been manipulated and distorted by the political class to such an extent that today this democratic exercise has failed to check corrupt practices such as money laundering, bribery, financial misappropriation, stashing black money in foreign countries etc.

In as much as the average man on the street may feel a sense of vindication in the damning indictment of Yeddyruppa, the overwhelming sense of a loss or indignity forced on the Nation cannot be brushed aside. Should the indictment be a time for celebration or should it be a time to reel in a sense of shame that a person who was elected to the position of the leader of the people should be found dipping his dirty hands in the pie ?

The need for raising this very question is necessitated by the uncomfortable fact that Yeddyruppa is but just a small fish netted from the cesspool of corruption which is patronised by the political class and ably aided by a system which is personified by the Babudom. An understanding of this ugly reality is therefore necessary to understand why the Congress led UPA Government is dragging its feet and demonstrating that it is not at all interested in passing a Lokpal Bill which has teeth and muscle.

The adamant stand of the Government is necessitated by the benefits that the politicians stand to gain as long as the status quo is maintained and this is the very reason why Ana Hazare has been able to capture the imagination of quite a large number of people and why a Baba Ramdev nearly succeeded in stealing the thunder from the issue at hand.

In the beginning when innocence was still a virtue there was nothing wrong in bringing the Anti-Corruption branch and the Central Bureau of Investigation under the Government and this means that these two agencies cannot work at their own initiative.

The Lokpal at the Centre and the Lokayukta at the States look to undo this and this means that once these two agencies become independent entities they can initiate action against the top rung officers or any politician without much interference. This is not all.

The Central Vigilance Commission, which is the authorised body at the Centre to recommend the dismissal of a corrupt officer, has been reduced to the status of an advisory body, but Lokpal and Lokayukta will have the authority and the independence to dismiss the corrupt.

Judges can be tried and prosecuted by the Lokpal and the Lokayukta and politicians will have no say in the selection and appointment of chairpersons and members of these two bodies. It is easy to see why the UPA Government has developed cold feet in going full steam ahead with the Lokpal Bill at the Centre and this is totally in line with the political culture that is associated with a Yeddyruppa.

The question is whether it is the system which has given birth to the Yeddyruppas or whether it is the Yeddyruppas who have scripted the system. Karnataka has shown that its Lokayukta is alive and kicking and the natural question that follows is, what about here, in this kingdom of Mr Okram Ibobi ?