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Judiciary out of Lokpal? Team Anna softens stand

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Arvind Kejriwal

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The 40-hour standoff between Anna Hazare and the government ended on Thursday, with the Gandhian leader agreeing that his fast would not exceed 15 days. The Hazare group also clearly indicated that it is ready to drop its insistence over a key sticking point on inclusion of the higher judiciary within the ambit of the proposed Lokpal law.

Team Anna might consider dropping the contentious demand to bring the judiciary in the anti-corruption ombudsman’s jurisdiction if the government delivers on a strong judicial accountability bill. The inclusion of higher judiciary has been opposed by both the government and main opposition party BJP on the ground that it would affect the independence of the courts.

There is also a possibility that the Hazare group and the government might be able to find middle ground on another important demand relating to including the prime minister in the law’s jurisdiction.

If the government’s plans for a Judicial Accountability and Standards Bill meet the expectations of the activists, judicial probity need not be addressed by the Lokpal, said Anna’s associate Arvind Kejriwal. “If a strong judicial accountability bill is brought to Parliament, we are open to excluding this from the Lokpal,” he said.

Hazare’s associates sealed a deal with Delhi police early on Thursday morning and Kejriwal said Anna’s fast would not continue beyond 15 days. “It depends on how the government responds to the demands put before it,” he said. This was echoed by another key member of Team Anna, Kiran Bedi, who said the Gandhian would fast as long as his medical examiners, including Dr Naresh Trehan, felt he should.

Clauses of the undertaking that Team Anna has agreed to and which were part of the original terms include – no damage to public property; gathering will not exceed the limit of the ground; the crowd will not spill over to nearby roads; protesters will cooperate with traffic police; loud speaker use within the ambit of a Supreme Court order setting a 10 pm limit.

Team Anna, however, is insistent that the Lokpal must be able to probe the Prime Minister. “The PM has to be in the ambit of the Lokpal,” Kejriwal said. There is a possibility of this demand being conceded as unlike in the case of higher judiciary, BJP and Left parties differ with the government with the Opposition backing the activists.

Government sources felt the inclusion of the PM’s office with riders like excluding decisions relating to national security and foreign policy can be considered by the standing committee examining the Lokpal bill. It is a bargaining chip the government can use. At the Cabinet meeting that cleared the bill, four ministers supported Prime Minister Manmohan Singh‘s view that examination of an incumbent PM is better than an inquiry after he demits office.

Indications from both camps point to the likelihood of another round of negotiations or at least exchange of proposals with the government still opposed to Team Anna’s demand for a large bureaucratic structure and inclusion of lower-level officials in the law’s ambit. The government sees Lokpal as an institution to specifically combat corruption in high places.

Speaking to TOI, lawyer Prashant Bhushan said the core committee of India against Corruption was meeting on Friday to discuss the demands. “The matter will be discussed in the core committee then.” Sources said while the group has been militant about its demands, it would soon decide on the inclusion of judiciary.

Team Anna’s statements gain significance as they come at a time when they have won a battle of wills with the Centre after a 40-hour standoff. The breakthrough came in the small hours on Thursday after Anna associates met Delhi Police commissioner B K Gupta, and reached an agreement.

The other clauses are arrangements for drinking water, medical aid, mobile toilets, proper lighting; no carrying of lathis or weapons; no provocative slogans or speeches; no inflammatory slogans within 200 meters of religious or worship places; care to be taken of public safety and no use of crackers.

Medical examination of Anna and those who will keep fast along with him will be conducted by government doctors thrice a day, while Team Anna promised to abide by the April 16, 2009, order of the Supreme Court which stipulated rules and regulations for public protests.

Beware of the Government Lokpal Bill

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Corruption

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ARVIND KEJRIWAL IN LIEU OF ANNA HAZARE AND INDIA AGAINST CORRUPTION

I reviewed the Government’s Lokpal bill in great detail. I am deeply concerned and not to mention alarmed with what I learned from it. Government has completely ignored the wishes of the common man and made a mockery of our hard fought struggle for strong anti-corruption laws. I have summarized the most troubling aspects of the government version here and suggested possible steps that everyone of you can take to help in this movement.

We had been demanding that an institution called Lokpal should be set up for central government and a Lokayukta should be set up for each state government through the same Bill. Lokpal would receive and investigate corruption complaints against central government employees and politicians. Lokayukta would do that job in respective states. However, the Cabinet has rejected our demand. Only a few senior-most officers in central government have been brought within the jurisdiction of Lokpal. All officials and politicians in state governments have been left out.

What does that mean?

  • It means that rampant corruption in Panchayat works would continue as it is. Through the use of RTI Act, many people across the country have revealed how payments are routinely made for ghost works. Check dams exist only on paper. List of beneficiaries of various government schemes contain bogus names. Wages of poorest people are denied and siphoned off under NREGA. Social audits in several states have exposed corruption running into thousands of crores in NREGA. Medicines are routinely diverted to black market from government hospitals. Teachers do not turn up in government schools. They pay a part of their salaries to Basic Shiksha Adhikari to mark their attendance. 80% of Rs 30,000 crores of ration subsidy is siphoned off. People living below poverty line are turned away by ration shopkeepers because their rations are diverted to black market. Much of this money reaches the party coffers or the senior-most politicians. All this will continue even after the enactment of government’s Lokpal Bill because all of this is outside its jurisdiction.
  • In cities, roads would continue to break after a few months of being constructed. Flyovers would continue to collapse. Streetlights will still not light up. Parks would continue to remain dilapidated. The builders would continue to fleece ordinary consumers. You would still need to pay bribes to get your passport or income tax refund. Building plan will not be passed without a bribe. Government’s Lokpal Bill does not cover any of this.
  • Adarsh Housing scam is not covered under Government’s Lokpal. Reddy brothers will continue to loot our mines and minerals. Commonwealth Games, Fodder scam, Taj Corridor Scam, Yamuna Expressway scam, Jharkhand Mukti Morcha scam, Cash for vote scam – none of these scams are covered under Government’s Lokpal Bill.
  • Members of Parliament and MLAs would continue to take bribes to ask questions or vote in Parliament and legislative assemblies because Lokpal would not have the powers to investigate them.
  • Prime Minister, Chief Ministers, MPs, MLAs, municipal councilors, sarpanches, judges, all state government employees, all Group B, Group C and group D employees of the central government – all are out of the jurisdiction of Government’s Lokpal Bill.
  • Interestingly, if any citizen makes a complaint of corruption against any official to Lokpal and if it lacks adequate evidence, then as per government’s bill, the citizen would face two years of minimum imprisonment. And the government would provide a free advocate to the corrupt official to file a case against the citizen. But if the citizen is able to prove that the official has indeed indulged in corruption, there is just six months of minimum imprisonment. Therefore, rather than the corrupt and corruption, the government bill is targeted against those who dare raise their voice against corruption. In short, it discourages people from reporting acts of corruption!
  • 13 people, who had dared to raise their voice against corruption, were murdered in the last one year. We had demanded that Lokpal should have the powers and duty to provide protection to such people. Government Bill does not have any such provision.
  • Government has retained its control over CBI. So, CBI would continue to avoid taking action against a future Raja until Supreme Court admonished them. Accounts of Quattrochis would continue to be defrozen in secrecy against national interests. CBI would continue to be used to arm twist Mayawatis, Laloo Yadavs, Jayalalithas and Mulayam Singhs into submission. Corruption money would continue to be siphoned off to Swiss accounts.
  • Government’s Lokpal Bill is also unconstitutional. Prime Minister does not enjoy any immunity from investigations under the constitution. Exclusion of Prime Minister from Lokpal Bill is unconstitutional.
  • Selection and removal of Lokpal members will be completely in the control of the government. Out of 9 member selection committee, five will be from ruling establishment, thus effectively giving powers in the hands of the government to appoint the most corrupt, pliable and politically loyal people as Lokpal members.
  • High Courts and Supreme Court would continue to take more than 20 years to dispose appeals in corruption cases because our plea to set up special benches to hear such appeals has also been turned down.

Government says that there are 1.25 crore government employees in the country. Government refuses to bring them under Lokpal Bill because it would need large number of anti-corruption staff to keep a check on them. Isn’t that an absurd excuse? India is a huge country. Obviously, it has large number of employees. Can the government leave them unchecked and allow them to loot the people and the country? Under law, corruption is a crime – as heinous as murder or rape. If tomorrow, the incidence of murders or rapes increases as much as we have corruption now, would the government turn around and say that this country has 120 crore population and since they would need large number of policemen to check crime, they would not do it?

The country seems to be in the clutches of highly corrupt people. It has been reported that in the Cabinet Meeting, the Prime Minister, including some of his other Cabinet colleagues, kept pleading that PMbe included within the Lokpal Bill. However, the corrupt within the Cabinet had the last say. The Prime Minister was rendered helpless, though one wonders the reasons for his helplessness.What are our options?  Some people feel that Anna is unreasonable. They say that an indefinite fast is a brahmastra and should be used as a last resort. Haven’t we already reached the end of the road?Friends, I must confess, that the road ahead is extremely challenging. Government is on a path to try and crush the movement at any cost. We need the active participation of every single Indian in order to fight back. If the Government’s bill becomes law we are literally gifting our country to the corrupt people to further plunder our resources.
Like I have said before its now or never.Let every citizen in this country take one week’s off from his normal work from 16th August, the day Anna starts his indefinite fast, and take to the streets – in front of his house or at the crossings or in parks – with a tricolor in his hands shouting slogans against corruption. Let students take off from their schools and colleges. Let everyone take to streets. If this happens, we will achieve our goal within a week. Government can crush one Anna but it cannot crush 120 crore Annas. Government can impose section 144 on one jantar mantar. But it cannot impose a curfew on the whole country.Can we count on you support to participate in one final attempt to save our country from the corrupt?
Arvind Kejriwal
India Against Corruption (IAC)
http://www.indiaagainstcorruption.org
Give missed call at 022-61550789 to stay connected
Signing Common Platform Petition to PM at :<<LINK>>
Email :indiaagainstcorruption.2010@gmail.com
LINK TO GOVERNMENT LOKPAL BILL 2011

 

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.

Keeping PM under Lokpal ambit not advisable: PM

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Bringing the office of Prime Minister under the ambit of lokpal would “not be advisable”, Prime Minister Manmohan Singh said on Sunday. Singh, who had earlier stated that he was not against the office of the Prime Minister being brought under the lokpal’s purview, told reporters that the government has taken the decision after “taking all factors into account”.

“Well, our government has taken a view taking all factors into account. It would not be advisable to bring the Prime Minister within the purview of the lokpal, except when he demits office,” Singh said on the eve of Parliament‘s Monsoon Session. The lokpal bill would be introduced in Lok Sabha by August 3.

On Anna Hazare‘s threat to go on a fast from August 16 to protest a “weak” lokpal bill, Singh said the lokpal bill’s fate will be decided by Parliament.

“As you know, we are ready with the lokpal bill. Lokpal bill’s fate will be decided by Parliament. In a democracy, Parliament is a sovereign body, it should be allowed to function and discharge its duty,” he said.

At the July 28 Cabinet meeting which cleated the lokpal bill, Singh had insisted that his office should be brought within the ambit of the legislation, but the Cabinet decided otherwise.

His comments came a day after finance minister Pranab Mukherjee said bringing the Prime Minister under the lokpal would result in “institutionalised permanent instability” at the Centre.

Written by THE LAWFILE

July 31, 2011 at 5:59 pm

The dangers of redefining democracy

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Arun Kumar in THE HINDU

If bribe-giving is legalised, some have suggested, the vexed problem of corruption facing the government would be less severe. Some powerful voices from within and outside the government have even argued for this. The argument is in line with the theoretical case that corruption and smuggling improve economic efficiency. Such redefining of words is not an isolated activity today.

Prime Minister Manmohan Singh indulged in it at a recent meeting with newspaper editors. On the Lokpal bill, he said he personally favoured the Prime Minister coming under its purview but added that his Cabinet colleagues were against it — prevarication at its best.

Dr. Singh has acted decisively on issues close to his heart like the India-U.S. civil nuclear deal, which he pushed through in spite of the threat to his government and disquiet among many. Clearly, for him, the Prime Minister coming within the Lokpal’s purview is not of much importance. It is consistent with his view that corruption is not as endemic as is being made out by the media and the Opposition, and that it is largely their creation. He also pleaded for moderating the campaign against corruption on the plea that it is spoiling our international image.

His argument that decision-makers act ex-ante, in uncertainty and without full information, must be music to the ears of wrong-doers. He clarified that in hindsight, one can be wiser about the mistakes committed. The sub-text is that inappropriate decisions are not deliberate, but genuine errors of judgment — an alibi for corrupt elements.

As a general proposition, the argument can hardly be faulted. But is it also true in specific cases? In the 2G spectrum allocation case, the CBI, under the Supreme Court’s directions, has unearthed blatant wrongdoing. Giving a very short notice to file bids and, that too, a few hours, for instance. Without advance knowledge, a bid could not have been filed. Why did some of the licences go to those who had no experience in the field? None of this had anything to do with uncertainty.

Dr. Singh also argued that he could not be expected to look into details pertaining to each Ministry and that he was not an expert on all matters. But he has a string of agencies and experts at his beck and call. Why was their advice not sought? Especially, when the wrongdoings pertaining to the 2G case were immediately pointed to in 2008? The implication is that the system failed. Is someone accountable for the failure? In the Commonwealth Games scam, there was blatant loot in contracts and purchase of exercise machines and toilet paper rolls. None of this had anything to do with uncertainty or ex-ante nature of decisions or lack of expertise. Has the Prime Minister shifted ground — from his ‘coalition compulsions’ argument to giving technical explanations for his silence and inaction?

If Dr. Singh’s line of argument is to be accepted, from now on, no one need take responsibility or be accountable as mistakes can be said to be unintended or due to a lack of expertise. Further, one ought not refer to widespread wrongdoing lest it spoil the international image. The Prime Minister, a clever academic, has distorted the meaning of words such as “accountability” and “corruption.”

Changing the meaning of words like “accountability” will damage the system. Rule of law, social justice, good governance and building a civilised society depend on it. Similarly, when terms like “democracy,” “people’s representation” and “justice” lose much of their content, democratic institutions decline. Thus the nation needs an institution like Lokpal to bring about accountability.

The government has decided to aggressively stall a stricter Lokpal bill. To be fair, arguments for leaving the Prime Minister and the higher judiciary out of the Lokpal’s purview have been advanced by other respected persons too. Their argument is that the inclusion of the Prime Minster and the judiciary will undermine their independent functioning and prevent them from taking tough decisions for fear of being incorrect and inviting challenges. Logically, then, they should not come under scrutiny even after they demit office because even that could deter them from taking decisions. In other words, no accountability should be demanded of the Prime Minister.

Further, it is argued that in a democracy, the Prime Minister is accountable to Parliament. So, any wrongdoing by him would automatically be checked by the Opposition (enforcing accountability). It is also stated that the Lokpal, an agency external to the parliamentary system, will undermine Parliament. It is also feared that frivolous charges could be brought against the Prime Minister, given the nature of fractious politics. Every time a charge is levelled, there would be a demand for the Prime Minister’s resignation and she/he would be immobilised.

All this begs the question: why is there a strong demand for bringing the Prime Minister within the Lokpal’s purview? Why has Parliament failed to make the Prime Minister accountable? In the last 40 years, many Prime Ministers have been suspected of wrongdoing. Same is the case with many Chief Ministers, Ministers, Chief Justices and the higher judiciary. The existing institutional structure has patently failed to make these high functionaries accountable.

Further, due to corruption, justice is either miscarried or delayed (barring a few high-profile cases). There is a widespread feeling of lack of social justice. The political leadership and the top judiciary are seen to have failed the people in spite of the checks and balances a democracy is supposed to provide. Their credibility has been eroded, leading to the demand that they be made accountable in newer ways — outside the present democratic framework.

In brief, ‘democracy’ is being given as the reason for not bringing the nation’s highest functionaries within the Lokpal’s ambit. The counter-argument is: because ‘democracy’ has been twisted out of shape, there is a need for newer ways to re-energise it by, say, an independent Lokpal. Of course, it goes without saying that even the Lokpal may eventually get subverted since there can neither be a magic wand nor a perfect law to deal with social problems.

It is also argued that NGOs and civil society groups are not people’s representatives — at best, they represent small groups. The legislators, on the other hand, are people’s representatives. This view also emerged in the all-party meeting on the Lokpal bill. While formally this is true, the reality is that ‘representation’ has lost much of its meaning. Does anyone represent people’s interests today? Members of civil society groups and NGOs who have stood for elections have mostly lost. So the politicians are right in saying they represent only small groups. But this is not the whole truth.

The way the government initially caved in to the demands of civil society groups suggests that it panicked because these groups captured the popular sentiment of that section — the middle class — which has provided the government its legitimacy. The media, by playing up the issue, aggravated matters.

The government’s flip-flop on the issue in the last few months ought to clarify whose interest it serves — citizens, the elite or vested interests. While workers’ movements (big and small) have been routinely ignored by the government or dealt with a heavy hand, it responded to the middle class protests. With a scam a week surfacing in the last few years, the illusion of the middle class that the government represents its interests stood shattered, which is why the government initially reacted the way it did. As soon as it devised ways of confusing the middle class, it backtracked.

Revelations in the phone hacking investigations in the U.K. have brought out the nexus among the power elite and the erosion of accountability in the mother of democracy. In India, we are way ahead and have creatively redefined national interest, representation, democracy and corruption to the benefit of the vested interests.