Posts Tagged ‘Prevention of Corruption Act

Fast and furious

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The Indian Constitution preamble

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Anna Hazare’s crusade against corruption has gathered momentum. Arousing the conscience of the nation on the issue augurs well. But the spontaneous response of people to his detention and fast needs to be guided in the right direction. Peaceful protest is permissible and Mr Hazare’s motive in undertaking the fast is laudable, but compelling Parliament to enact his Jan Lokpal Bill is not constitutionally permissible. Even the Supreme Court of India cannot dictate to Parliament. Mr Hazare should immediately defuse the mounting tension, pause and consider a few legal aspects and direct his attention and energies towards a more constructive path for achieving the object, instead of continuing with his fast.

Assuming that Mr Hazare’s Jan Lokpal Bill becomes a law, will it eradicate corruption? The Lokpal Act will only provide yet another mechanism to bring some corrupt public servants in high positions to book. The Prevention of Corruption Act, 1947, and its successor act of 1988 have not succeeded in preventing corruption. Only one Lokayukta, Justice Santosh Hegde in Karnataka, has shown courage of conviction and submitted a report holding a senior politician, former Karnataka chief minister B.S. Yeddyurappa, guilty of corruption. Punitive measures are necessary, but their effect is limited. The Jan Lokpal Bill will neither prevent appointment of corrupt officials to public offices nor facilitate immediate suspension or removal of public servants of doubtful integrity, essential steps for checking corruption.

Also, is the insistence on bringing the office of the Prime Minister and the senior judiciary within the purview of Lokpal proper when opinion is divided among experts on the issue? Judicial luminiaries, like former Chief Justices M.N. Venkatachaliah and J.S. Verma, have advised against inclusion of the Prime Minister and judges for sound reasons. There are reservations among leaders of political parties as well on this issue. Inclusion of judges may make the judicial process vulnerable because of interference with the independence of the judiciary, a basic feature of the Constitution.

Is it right to bring moral pressure on Parliament through a fast to enact a particular bill? Would such fast be consistent with the ethos of parliamentary democracy which is another basic feature of the Constitution? Dr B.R. Ambedkar, in his last speech in the Constituent Assembly, said, “We must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods to achieve economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the grammar of anarchy and the sooner they are abandoned, the better for us.” According to this view, Mr Hazare’s fast is unconstitutional.

Over the years almost all institutions of self-governance have been losing their credibility and efficacy due to a faulty electoral system that permits undesirable elements to get elected with money power, muscle power and caste and community backing. Those who invest heavily in elections tend to make hay while the sun shines. In his 13th Desraj Chaudhary Memorial Lecture, Atal Behari Vajpayee said, “The electoral system has been almost totally subverted by money power, muscle power and votebank considerations of castes and communities…” In 1922, C. Rajagopalachari predicted in his prison diary, “Elections and their corruption, injustice and the power and tyranny of wealth and inefficiency of administration will make life hell as soon as freedom is given to us. Men will look regretfully back to the old regime of comparative justice, and efficient, peaceful, more or less honest administration…”

It is, therefore, necessary to purify the system by summary removal of public servants of doubtful integrity, including judges, MPs, MLAs, MLCs and civil servants, and simultaneously bar the entry of such persons into Parliament, state legislatures, the judiciary and public services throughout the country. Mr Hazare should concentrate on this aspect.

Dark deeds are never done in broad daylight. Providing foolproof evidence in corruption cases to a court of law or for a departmental inquiry is difficult and time consuming, as the culprits try to thwart every attempt to bring them to book. Therefore, a provision needs to be inserted in the Indian Constitution for constant evaluation of the integrity of all public servants — complaints that raise doubts about the integrity of any official should be considered and if there is even prima facie suggestion that the complaint is legitimate, “shady characters” should be removed forthwith, if need be on payment of some compensation.

A political fast-unto-death amounts to an offence under the Indian Penal Code, if it reaches a stage when there is imminent danger to life. The right to life guaranteed by the Constitution does not include the right to die. A legal duty is cast on the state to protect the life of every person. The state cannot remain complacent as people’s emotions in India rise high when a leader goes on a fast for a public cause. The widespread reaction to Mr Hazare’s detention and remand to judicial custody casts on him the responsibility to ensure that his followers do not indulge in violence. Instead of allowing unsuccessful politicians to fish in troubled waters and try to destabilise the lawfully established government, Mr Hazare should demand a meeting of all leaders in Parliament for a dialogue on the issue and to decide on ways and means of tackling corruption quickly.

The government needs to respect Mr Hazare’s right to protest peacefully and, at the same time, take every step to maintain peace. The government should invite the leaders of all parliamentary parties, government representatives, Mr Hazare and his aides for a round-table meeting to review the situation and arrive at a consensus within the framework of the Constitution. A joint appeal to people by all of them to remain calm will be timely.


PM Should Come Under Lokpal’s Scanner: Supreme Court Judge

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A sitting Supreme Court judge supported the inclusion of the Prime Minister’s Office within the ambit of Lokpal Bill tabled in Parliament.

“As a student of law, I see no substance in the debate that the Prime Minister should be outside the (Lokpal) Bill. A public office of such importance cannot shy away from public scrutiny,” Justice A K Ganguly said.

The judge was addressing a gathering here on the occasion of the release of a book ‘Corruption and Human Rights in India‘, authored by Professor C Raj Kumar, the Vice Chancellor of O P Jindal Global University.

Pointing out that Prime Minister Manmohan Singh had himself expressed his willingness to bring the PMO under the Lokpal’s scanner, Justice Ganguly said “more efforts to keep the PM out will add to the suspicion among people.”

In his address, Justice Ganguly also criticised the Prevention of Corruption Act, which stipulates sanction by competent authorities before prosecuting any government servant, bureaucrat or politician on charges of corruption.

“The Prevention of Corruption Act, to my mind, is preservation of corruption act. It has a mechanism to protect the corrupt. Without the sanction, the corrupt cannot be prosecuted. Who is to give you the sanction? They (corrupt) do not act individually and they work in a organised way,” he said.

Justice Ganguly is also the part of a two-judge bench which had heard a petition by Janata Party chief Subramanian Swamy seeking guidelines for the grant of sanctions to prosecute those occupying public offices on the charge of corruption and has reserved its order on the plea.
In our society, unfortunately, a corrupt man is successful and an honest one is frustrated,” Justice Ganguly said, adding “the corrupt ones are most of the times leaders.”

Briefly touching the issue of corruption in judiciary, he rued that two of the high court judges of the country were facing impeachment proceeding on corruption charges.

“Both Justice P D Dinakaran and Justice Soumitra Sen, fortunately or unfortunately, were my colleagues at one time but unfortunately I cannot defend them,” he said.

Vice President Hamid Ansari, who also graced the occasion, however, emphasised on the need for a balanced approach in dealing with the issue of corruption saying that rushing to solutions will do more harm than good.

“Shortcomings, wherever, should be identified and filled but impatience and frustration with the current situation of things should not lead us to form an extra-judicial or a quasi-judicial legal process. Eroding the balance by under reach of one or overreach of other will do more harm,” he said.

Congress MP Naveen Jindal said each citizen must do his own duty rightfully to eradicate corruption.

“It (corruption) is not something only at the high echelons of the government but is present throughout. Lokpal may be of help by one percent or two only. It has to come from inside us,” he said.

No one is a holy cow, why keep PM out?: Sushma

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A Bill to establish the institution of Lokpal that will look into into charges of corruption against certain public functionaries was finally introduced in the Lok Sabha on Thursday. The BJP opposed the Bill as it had not brought the post of Prime Minister within its purview.

The Bill has created controversies resulting in a dispute between the Union government and the civil society led by Anna Hazare.

Soon after the Bill was introduced, Mr. Hazare urged people to burn copies of the government draft, while doing so himself. Terming it a weak Bill, he asked every village, district and State to come forward and burn copies of the Bill. He was talking to the media in his hometown Ralegan Siddhi in Maharashtra.

When Minister of State for Parliamentary Affairs V. Narayanasamy tabled the Bill, Leader of the Opposition Sushma Swaraj objected to some constitutional provisions in it.

With the permission of Speaker Meira Kumar, under Rule 72, she said: “what is the logic in excluding the office of Prime Minister from the ambit of the Lokpal Bill, 2011, when legislations such as the Indian Penal Code, the Criminal Procedure Code and the Prevention of Corruption Act did not give immunity to the post. No one can be a holy cow. How can you put Prime Minister outside the system?”

Vajpayee’s statement

Ms. Swaraj recalled a statement of the former Prime Minister, A.B. Vajpayee. He had said: “if Prime Minister is not included in the Lokpal, then the law becomes ineffective.”

As Prime Minister Manmohan Singh watched keenly, she said even Dr. Singh had opined that he had no objection to his post being brought under the purview of the Bill. When the Prime Minister himself was willing why his allies were not accepting it, she asked. Ms. Swaraj said even Finance Minister Pranab Mukherjee, while heading the parliamentary standing committee on the Home Ministry in 2002, felt that the post of Prime Minister could be brought under the Lokpal.

The BJP would support the Bill tomorrow itself if it was amended by including the post of Prime Minister and introduced again. “But in this form [without the Prime Minister] we would not allow this Bill to be introduced,” she said.

Mr. Mukherjee, accepting that he made such a suggestion on February 16, 2002, wanted to know what prevented the then NDA regime from including the post of Prime Minister and introducing the Bill.

Mr. Narayanasamy said that though Dr. Singh wished for inclusion of his post in the Lokpal, the decision of the Cabinet was ultimate and the objections of Ms. Swaraj could not be sustained. If at all the Opposition wanted to raise their points, they could do so when the Bill was considered by the standing committee.

When Sharad Yadav (Janata Dal-United) wanted to say something on the Bill, he was disallowed by the Chair.

The post of Prime Minister during his/her term, the higher judiciary and the conduct of MPs inside Parliament will not come under the ambit of the legislation. It does not provide for constitution of Lokayuktas in States.