fearless investigation by an independent investigative agency against delinquent ‘greats'. A good Lokpal bill has to be nothing लेस
It is in this context that this article addresses the issue of whether the Prime Minister should be brought under the ambit of an Ombudsman (Lokpal) and be subject to its scrutiny। It is important to observe that in most of the Lokpal bills, including the 2010 government draft (except the 1985 version), the Prime Minister is within the ambit of the Lokpal.
Under the Indian Constitution there is no provision to give immunity to the Prime Minister, Chief Ministers or Ministers। Under Article 361, immunity from criminal proceedings is conferred on the President and the Governor (formerly the Rajpramukh) only “during his term of office.”
During the period of the Internal Emergency (1975-77), Indira Gandhi enjoyed dictatorial powers। She detained without trial prominent Opposition leaders and was supported by a captive and rump Parliament.
The Constitution (Fortieth Amendment) Bill was moved in, and passed by, the Rajya Sabha in August 1975 and later it was to go before the Lok Sabha। The Bill was blacked out from the media and hence very few people knew about it. It never became law because it was not moved in the Lok Sabha.
The Bill sought to amend Article 361 by substituting sub-clause (2) thus: “(2) No criminal proceedings whatsoever, against or concerning a person who is or has been the President or the Prime Minister or the Governor of a State, shall lie in any court, or shall be instituted or continued in any court in respect of any act done by him, whether before he entered upon his office or during his term of office as President or Prime Minister or Governor of a State, as the case may be, and no process whatsoever including process for arrest or imprisonment shall issue from any court against such person in respect of any such act।”
In Japan, Prime Minister Kakuei Tanaka (July 1972 to December 1974) was found guilty of bribery and sentenced। In Israel, Prime Minister Ehud Olmert was indicted in corruption scandals in August 2009. In Italy, Prime Minister Silvio Berlusconi enacted, through a pliant legislature, a law by which he shielded himself from prosecution. The Italian Constitutional Court recently invalidated crucial parts of that law, which may result in his trial being revived.
The first one runs thus: “The simple answer is, if the Prime Minister is covered under ordinary law (the Prevention of Corruption Act), you don't need him covered under Lokpal.” This is a view that has been attributed to the former Chief Justice of India, J.S. Verma (Hindustan Times, June 27, 2011). Any misconduct by a Prime Minister can be investigated by the Central Bureau of Investigation: this view is that of Chief Minister Jayalalithaa (The Hindu, June 28, 2011). This objection concedes the principle that the Prime Minister is not immune from criminal liability and can be investigated, but argues and assumes that the Prevention of Corruption Act and the CBI present effective existing alternative procedures. Nothing could be farther from the truth and the ground realities.
What is the ground reality? First, the CBI, the premier anti-corruption investigative agency, is under the Department of Personnel and Training, which is controlled by the Prime Minister's Office (PMO)। Secondly, the career prospects of CBI officers and other personnel are dependent on the political executive, and all officers are subject to transfer except the Director. Thus, the investigative arm is controlled by the ‘political suspects' themselves. Thirdly, the Single Directive, a secret administrative directive that was invalidated by the Supreme Court in the Jain hawala case in 1997 (Vineet Narain v. Union of India) has been legislatively revived. Consequently, under Section 6A of the Delhi Special Police Establishment Act, the CBI is disabled from starting an inquiry or investigation against Joint Secretary or higher level bureaucrats without the Central government's prior approval. Therefore, the Prevention of Corruption Act is a non-starter against Ministers and high-level bureaucrats who may act in concert. It is imperative that the CBI's anti-corruption wing be brought under the Lokpal and not under the PMO. This alone would meet the test of an independent and fearless investigative agency as enunciated by Justice Krishna Iyer.
Secondly, it is argued that if the Prime Minister is within its ambit, the Lokpal could be used by foreign powers to destabilise the government। Today, the checks on the executive government are the higher judiciary, which has actively intervened in the 2G spectrum scam and other scams; the CAG, whose reports against the functioning of the telecommunications sector triggered investigations into scams; the Election Commission headed by the Chief Election Commissioner, which conducted elections in West Bengal in the most efficient and orderly fashion. All these authorities could be undermined by a foreign power. Why should the Lokpal alone be the target of a foreign power? Why not the intelligence and defence services? Why not leaks from Cabinet Ministers and their offices — bugged or not?
Thirdly, it is argued that bringing the Prime Minister under the Lokpal's scrutiny would mean a parallel government being put in place। This objection is disingenuous. Do the Supreme Court and the higher judiciary constitute a parallel government? Is the CAG a parallel government? Is the CEC a parallel government? Is the CBI a parallel government? The answer is clear. These constitute checks and restraints on the political executive and the administration so that public funds are not misappropriated and constitutional democracy and citizen rights are not subverted. The Lokpal will be under the Constitution and subject to judicial review, and it is imperative that the anti-corruption wing of the CBI be brought under the Lokpal. There is no question of any parallel government. The Lokpal will be only a check on the corrupt activities of the Executive. If all checks and balances are to be regarded as the marks of a parallel government and therefore abolished, it will be a recipe for dictatorship.
http://www.thehindu.com/opinion/lead/article2148073.ece
हिस्टरी एंड इन्स्पिरतिओनThe Lokpal bill was first introduced by Shanti Bhushan in 1968[5] and passed in the 4th Lok Sabha in 1969. But it did not get through in the Rajya Sabha, the upper house of the Parliament of India. Subsequent versions were re-introduced in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and in 2008,[10] but none of them passed. The bill is inspired of setting up an independent commission like Independent Commission Against Corruption (Hong Kong) (ICAG).[
Renewed calls for the bill arose over resentment of the major differences between the draft 2010 Lokpal Bill prepared by the government and that prepared by the members of the associated activists movement — N. Santosh Hegde, a former justice of the Supreme Court of India; Lokayukta of Karnataka; Shanti Bhushan; Arvind Kejriwal; Prashant Bhushan, a senior lawyer in the Supreme Court; and members of the India Against Corruption movement[2]।
Key features of proposed bill
Some important features of the proposed bill are:[2]
To establish a central government anti-corruption institution called Lokpal, supported by Lokayukta at the state level.
As in the case of the Supreme Court and Cabinet Secretariat, the Lokpal will be supervised by the Cabinet Secretary and the Election Commission. As a result, it will be completely independent of the government and free from ministerial influence in its investigations.
Members will be appointed by judges, Indian Administrative Service officers with a clean record, private citizens and constitutional authorities through a transparent and participatory process.
A selection committee will invite short-listed candidates for interviews, videorecordings of which will thereafter be made public.
Every month on its website, the Lokayukta will publish a list of cases dealt with, brief details of each, their outcome and any action taken or proposed. It will also publish lists of all cases received by the Lokayukta during the previous month, cases dealt with and those which are pending.
Investigations of each case must be completed in one year. Any resulting trials should be concluded in the following year, giving a total maximum process time of two years.
Losses caused to the government by a corrupt individual will be recovered at the time of conviction.
Government officework required by a citizen that is not completed within a prescribed time period will result in Lokpal imposing financial penalties on those responsible, which will then be given as compensation to the complainant.
Complaints against any officer of Lokpal will be investigated and completed within a month and, if found to be substantive, will result in the officer being dismissed within two months.
The existing anti-corruption agencies (CVC, departmental vigilance and the anti-corruption branch of the CBI) will be merged into Lokpal which will have complete power and authority to independently investigate and prosecute any officer, judge or politician.
Whistleblowers who alert the agency to potential corruption cases will also be provided with protection by it।
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